HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 030 - Motion To Dismiss Street Media Group's Cross Claim
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DISTRICT COURT, COUNTY OF LARIMER,
STATE OF COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2762
Telephone: (970) 494-3500
Court Use Only
Plaintiff:
THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation,
v.
Defendants:
BOARD OF COUNTY COMMISSIONERS OF LARIMER
COUNTY, COLORADO; STREETMEDIAGROUP, LLC
Attorneys for Defendant Board of County Commissioners
Frank N. Haug, Reg. No. 41427
Jeannine Haag, Reg. No
Larimer County Attorney’s Office
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone (970) 498-7450
fhaug@larimer.org
jeanninehaag@larimer.org
Case No. 2020 CV 30580
Courtroom: 4B
DEFENDANT BOARD OF COUNTY COMMISSIONERS’
MOTION TO DISMISS CROSSCLAIM
Defendants Board of County Commissioners of Larimer County (“BCC”), by and through
the Larimer County Attorney’s Office, move this Court to Dismiss the Crossclaim filed by
StreetMediaGroup, LLC (“StreetMedia”) pursuant to Colorado Rules of Civil Procedure
(“C.R.C.P.”) 12(b)(1) an 12(b)(5), and as grounds therefore state as follows:
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I. CONFERRAL
Defendants’ counsel conferred with counsel for Crossclaimant StreetMedia about this
Motion to Dismiss pursuant to C.R.C.P. 121 §1-15. Crossclaimants oppose the relief requested.
II. INTRODUCTION
In March of 2020, StreetMedia appealed various provisions of the Larimer County Land
Use Code (“LUC”) relating to signage. (Crossclaim “CC” ¶ 4). StreetMedia desired to construct an
advertising sign at the northwest corner of I-25 and Harmony Road. (Certified Record, Vol. I, pp 1-
52). StreetMedia is in the business of selling advertising space on signs. (CC ¶ 36). On June 1,
2020, the BCC issued its oral approval of the sign following a public hearing. (CC ¶ 6 and 7,
Complaint ¶ 47 and 49). On July 28, 2020, the BCC issued a written Findings and Resolution. (CC
¶ 8 and Comp. ¶ 51, and Certified Record, Vol. I, pp 1-6). The sign that StreetMedia requested and
the BCC approved, has been constructed and is operational. (CC ¶ 11 and 12). The City of Fort
Collins (“City”) filed an appeal of the decision of the BCC through a C.R.C.P. 106(a)(4) challenge
on August 25, 2020. (Complaint). StreetMedia filed a motion to dismiss the City’s Complaint on
September 22, 2020, which was denied by the Court on November 29, 2020.
Despite the existence and approval of its sign, StreetMedia, through its Crossclaim,
continues to allege that its constitutional rights have been, or may someday be, violated. Through
actions for declaratory and injunctive relief, StreetMedia seeks to establish that the BCC has
somehow committed an as-applied error in allowing it to construct the sign. Alternatively,
StreetMedia seeks this Court adjudge the Sign Code as a whole is facially invalid, presumably to
prevent some unspecified and potential future violation. Given that the sign in this case has already
been installed with BCC approval, the Crossclaim is more plainly viewed as an attempt to use the
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court system to force a legislative change to the Sign Code. The request by StreetMedia to
invalidate the entire Sign Code would likely benefit it by resulting in the ability to potentially
construct signs without any governmental oversight at all. StreetMedia is accurate in asserting that
First Amendment rights must be carefully considered when regulating signage. However, this does
not result in the complete inability of a local government to apply non content-based regulations
relating to signage and does not justify the relief requested in this case. For the reasons enumerated
below, the Crossclaim should be dismissed.
III. STANDARD OF REVIEW
Plaintiffs (in this instance Crossclaimant StreetMedia) have the burden to establish the trial
court’s jurisdiction. Development Recovery Company, LLC v. Public Service Company of
Colorado, 410 P.3d 1264 (Colo.App 2017). A trial court determines subject matter jurisdiction by
examining the substance of the claim based on the facts alleged and the relief requested. City of
Aspen v. Kinder Morgan, Inc. 143 P.3d 1076, 1078 (Colo.App 2006). The plaintiff has the burden
of proving subject matter jurisdiction, and evidence outside the pleadings may be considered to
resolve a jurisdictional challenge. Id.
The purpose of a motion to dismiss a complaint for failure to state a claim upon which relief
can be granted under C.R.C.P. 12(b)(5) is to test the formal sufficiency of the complaint. Dorman v.
Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996). Colorado adopted the plausibility standard for
complaints in 2016. Warne v. Hall, 373 P.3d 588 (Colo. 2016). Under the plausibility standard, “to
survive a motion to dismiss for failure to state a claim, a plaintiff must allege a plausible claim for
relief.” N.M. v. Trujillo, 397 P.3d 370, 373 (Colo. 2017). “The plausibility standard emphasizes that
facts pleaded as legal conclusions, (i.e. conclusory statements) are not entitled to the assumption that
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they are true.” See Scott v. Scott, 428 P.3d 626, 632 (Colo.App 2018). It is the plaintiff’s burden to
prove that a court has subject matter jurisdiction to hear the case. Pfenninger v. Exempla, Inc., 12
P.3d 830, 833 (Colo. App. 2000); Medina v. State, 35 P.3d 443 (Colo. 2001). “Subject matter
jurisdiction relates to the power or authority of the court to deal with a particular case[;] it either
exists or it does not.” Sanchez v. Straight Creek Constructors, 580 P.2d 827, 829 (Colo. App.
1978). Lopez v. Trujillo, 397 P.3d 370, 373 (Colo. 2017). Where the factual allegations in a
complaint cannot, as a matter of law, support the claim for relief, dismissal pursuant to C.R.C.P.
12(b)(5) is proper. Bewley v. Semler, 432 P.3d 582, 586 (Colo. 2018).
IV. ARGUMENT
StreetMedia’s Crossclaim should be dismissed. The declaratory judgment claim is an
attempt to rewrite local legislative policy through the courts. The declaration will not resolve the
current issue and in this matter--the relief sought has already been granted to StreetMedia, because it
has already built the sign. Injunctive relief is inappropriate because the BCC has not attempted to
stop StreetMedia from doing what it wants. A decision in favor of StreetMedia based on either of
its claims will not resolve any pending issue and will not prevent any real or immediate harm.
StreetMedia lacks standing to assert the claims it has made because it has not suffered an
injury in fact. Further, the claims fail because they are either not yet ripe or are already moot.
StreetMedia’s Crossclaim ask the Court to strike down an entire regulatory framework to prevent a
speculative and hypothetical future application and thus are not ripe. Simultaneously, StreetMedia
requests the Court enjoin the BCC from enforcing the regulations that it used to allow StreetMedia
to build its sign. This claim is moot. Either way, there is no appropriate remedy that the Court can
grant.
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This case was initiated by the City bringing a C.R.C.P. 106(a)(4) claim against both
StreetMedia and the BCC, seeking to undo the BCC’s approval of the sign. In its own pleadings,
StreetMedia has argued alternatively that the City had no standing to bring the case, that the BCC
appropriately approved the sign, that the City’s claims are barred, that there is no appropriate
remedy for the Court to grant, and that the City’s claims are moot. StreetMedia has further stated in
its own pleadings that the Court should affirm the decision of the BCC. (See Answer and
Crossclaim, specifically, Affirmative Defenses). StreetMedia now argues that the regulation which
the BCC used to approve its sign is wholly invalid, and the BCC should not have been allowed to
approve or disapprove the sign in the first place. StreetMedia also argues that it was not governed
by Section 12 of the LUC, but that the decision and result of the appeal to allow the sign was
appropriate, and further that the application of Section 12 to StreetMedia is unconstitutional. (CC ¶
21-25, 46).
Aside from the inherent contradictions present in its Crossclaim, Answer, and Motion to
Dismiss, StreetMedia has failed to plead sufficient facts to justify the claims moving forward. The
Crossclaim does not articulate any allegations of any damage caused, any evidence that its right to
free speech was frustrated in this instance, or that it has any specific intention of seeking any other
expression of its First Amendment rights which has been or is likely to be hindered by the BCC.
The status quo is that the sign exists and Streetmedia has not articulated in any manner the way in
which Section 10 has injured it, or prevented it from pursuing its goals, or cost it money. Instead, it
has simply made broad conclusory allegations; precisely the kind that a motion to dismiss is
intended to halt.
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A. STANDING
StreetMedia has not articulated that it has suffered an injury-in-fact in this case. It is again
worth recalling that the posture of the case is that the County approved the sign, and it is only the
City’s 106(a)(4) action that caused this matter to come to the Court. StreetMedia’s own motion to
dismiss highlights the importance of standing. “The doctrine of standing is a preliminary inquiry to
ensure that judicial power is properly exercised. Colorado General Assembly v. Lamm, 700 P.2d
508, 515-16 (Colo. 1985).”
As previously noted by this Court, C.R.C.P. 12(b)(1) allows a Court to dismiss a case for
“lack of jurisdiction over the subject matter.” See, e.g., Trinity Broadcasting of Denver, Inc. v. City
of Westminster, 848 P.2d 916 (Colo. 1993). Under Rule 12(b)(1) “the plaintiff has the burden to
prove jurisdiction.” Id., 848 P.2d at 925. “Standing is a component of subject matter jurisdiction
and is a constitutional prerequisite to bringing a lawsuit.” Hansen v. Barron’s Oilfield Service, Inc.,
429 P.3d 101, 103 (Colo. App. 2018). Standing in Colorado requires an injury-in-fact to a legally
protected interest. Ainscough v. Owens, 90 P.3d 851, 856 (Colo. 2004). Ainscough highlights that
standing is a doctrine developed to ensure the separation of powers, and that it is an exercise of
judicial restraint, specifically designed to ensure that the courts do not “encroach on the power of
the legislature to make prospective laws.” Id. An injury-in-fact may not be a “remote possibility of
future injury” nor an “injury that is overly indirect and incidental” to the defendant’s action. Id.
The constitutional prong of the standing requirement limits the court's inquiry to the
resolution of actual controversies, whereas the prudential prong reflects considerations of judicial
self-restraint. C.W.B., Jr. v. A.S., 410 P.3d 438, 443 (Colo. 2018). The question of standing must be
determined prior to a decision on the merits because standing involves the matter of whether a
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plaintiff has asserted a legal basis on which a claim for relief can be predicated, and if a court
determines that standing does not exist, then it must dismiss the case. Hickenlooper v. Freedom
from Religion Foundation, Inc., 338 P.3d 1002, 1006 (Colo. 2014).
The “injury-in-fact” element of standing for an action for declaratory judgment deciding the
validity of a regulatory scheme is established when allegations of the complaint, along with any
other evidence submitted on issue of standing, establishes that the regulatory scheme threatens to
cause injury to plaintiff's present or imminent activities. Board of County Com'rs, La Plata County
v. Bowen/Edwards Associates, Inc., 830 P.2d 1045, 1053 (Colo. 1992). It is axiomatic that
constitutional questions must be presented in sharp focus by parties whose interests are actually
affected by the questioned statutory provision. Flank Oil Co. v. Tennessee Gas Transmission Co.,
349 P.2d 1005, 1009 (Colo. 1960) It is fundamental that legislation is entitled to a presumption of
constitutionality and that the burden is on the person alleging invalidity to prove it beyond a
reasonable doubt. See People ex rel. Rogers v. Letford, 79 P.2d 274 (Colo. 1938). When a statute is
attacked on the ground of unconstitutionality, every presumption will be indulged in favor of the
legislation, and only clear and demonstrable usurpation of power will authorize judicial interference
with legislative action. Id, at 290.
The case cited by StreetMedia, Aptive Environmental, LLC v. Town of Castle Rock, 959
F.3d 961 (10th Cir. 2020) highlights the importance of the standing issue.
A plaintiff must demonstrate standing by establishing “(1) an ‘injury-
in-fact,’ (2) a sufficient ‘causal connection between the injury and the
conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will
be redressed by a favorable decision.’” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, (2014) “Put simply, a plaintiff must establish
three elements: an injury-in-fact, causation, and redressability.”
Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007).
at 973.
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Here, StreetMedia has not alleged that it intends to engage in any particular activity other
than generally being in the business of erecting signs. (CC ¶ 36, 37). Further, it has not alleged any
credible threat of prosecution. Instead, the facts make clear that there is no credible threat of
prosecution, because when StreetMedia asked for a sign, it was permitted to build it.
Instead, the redress that StreetMedia seeks is obliteration of the entire Sign Code and any
regulatory impediment to its business. StreetMedia does not point to any case law that holds signs
cannot be regulated at all. Instead, the law demonstrates that while First Amendment concerns are
of utmost important in the sign context, they are not all consuming. Even assuming that parts of the
LUC Sign Code are unconstitutional, this does not warrant invalidation of the entire Sign Code, nor
the invalidation of the permit that was issued to StreetMedia in this case.
The mere presence on the statute books of an unconstitutional statute, in the absence of
enforcement or credible threat of enforcement, does not entitle anyone to sue, even if they allege an
inhibiting effect on constitutionally protected conduct prohibited by the statute. Winsness v. Yocom,
433 F.3d 727, 732 (10th Cir. 2006), citing D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004). This
does not necessarily mean that a statute must be enforced against the plaintiff before he can sue.
Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir.2003). When he can show a “credible threat of
prosecution,” a plaintiff can sue for prospective relief against enforcement. Id. In other words, [to
articulate standing] plaintiff's expressive activities must be inhibited by “an objectively justified fear
of real consequences, which can be satisfied by showing a credible threat of prosecution or other
consequences following from the statute's enforcement.” D.L.S., 374 F.3d at 975 (citing Ward, 321
F.3d at 1267). See also Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir.1987) (plaintiff has standing
where he suffers “an ongoing injury resulting from the statute's chilling effect on his desire to
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exercise his First Amendment rights”). In this case, StreetMedia has not, and cannot, articulate a
reasonable threat of prosecution. StreetMedia has not articulated in its Crossclaim any specific,
non-speculative, and non-conclusory basis to believe it would be threatened with prosecution (i.e.,
denied the ability to erect a sign) by the BCC in the future.
In the separation of powers design of Colorado government, courts limit their exercise of
judicial power through jurisprudential doctrines that include standing, mootness, and ripeness, to
establish parameters for the principled exercise of judicial authority. See Stell v. Boulder County
Dep't of Soc. Servs., 92 P.3d 910, 914 (Colo. 2004). Standing has constitutional and prudential
prongs that function to limit who may bring causes of action to the courts. City of Greenwood Vill.
v. Petitioners for the Proposed City of Centennial, 3 P.3d 427, 436–37 (Colo. 2000). Mootness
instructs courts not to grant relief that would have no practical effect upon an actual and existing
controversy. Stell, 92 P.3d at 914. Ripeness tests whether the issue is real, immediate, and fit for
adjudication. Beauprez v. Avalos, 42 P.3d 642, 648 (Colo. 2002). Courts should refuse to consider
uncertain or contingent future matters that suppose speculative injury that may never occur. Stell, 92
P.3d at 914.
As recently as January 14, 2021, the 10th Circuit has held that an individual cannot attack the
entirety of a sign code because he believes it could potentially be applied unconstitutionally, or that
one of its provisions may be unconstitutional. In Clark v. City of Williamsburg, Kansas, No. 19-
3237 (D.C. No. 2:17-CV-02002-HLT) (D. Kan.), an individual claimed his First Amendment rights
were violated where a code compliance officer attempted to enforce a particular provision of a local
sign code. In that case, the plaintiff alleged that the whole sign code was invalid and
unconstitutional. In rejecting this argument, noting that there had been no unlawful enforcement
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nor evidence of any actual injury, the court cited to the Wisness case stating that the plaintiff lacked
standing. StreetMedia attempts a similar attack in this case. However, similarly StreetMedia has
not alleged any actual harm, nor that there is a legitimate reason to invalidate the entirety of the
code. StreetMedia was given permission to build its sign and has failed to allege any real or
pending injury. The conclusory statements in paragraphs 49-51 of the Crossclaim are conclusory
and insufficient to establish standing and the claims should be dismissed.
B. RIPENESS
The doctrine of ripeness recognizes that courts will not consider uncertain or contingent
future matters because the injury is speculative and may never occur. Save Cheyenne v. City of
Colorado Springs, 425 P.3d 1174 (Colo. App. 2018). An issue is “ripe” when it is real, immediate,
and appropriate for adjudication. Timm v. Prudential Ins. Co. of America, 259 P.3d 521, 529 (Colo.
App. 2011). A statute is not ripe for adjudication of its constitutionality unless there is an actual
application of the law pending or a reasonable possibility or threat of enforcement of the
law. Developmental Pathways v. Ritter, 178 P.3d 524 (Colo. 2008). Power vested in the judicial
branch of Colorado government flows primarily from Article VI, Section 1, of the Colorado
Constitution. In its exercise, courts limit their inquiry to the resolution of actual controversies based
on real facts. Davidson v. Comm. for Gail Schoettler, Inc., 24 P.3d 621, 623 (Colo.2001). The mere
possibility of a future claim is not an appropriate predicate for the exercise of judicial power. Bd. of
County Comm'rs of County of Park v. Park County Sportsmen's Ranch, LLP, 45 P.3d 693, 698
(Colo.2002).
StreetMedia’s position that because First Amendment claims are at issue, it is not required
to demonstrate more than the potential for a future claim, is not accurate. StreetMedia still must
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demonstrate that there is a realistic likelihood of some actual controversy between it and the County.
The fact that it may in the future continue to try to construct other signs is the precise type of
speculative future activity that the doctrine of ripeness is intended to keep out of the court system.
None of the allegations in the Crossclaim meet the actual controversy requirement and the claims
should be dismissed.
C. MOOTNESS
An issue is moot when the relief sought, if granted, would have no practical effect on an
existing controversy. Under those circumstances, any opinion would be advisory only, and a court
must avoid issuing advisory opinions. Stor-N-Lock Partners # 15, LLC v. City of Thornton, 2018
WL 2054320 (Colo. App. 2018); Save Cheyenne v. City of Colorado Springs, 425 P.3d 1174 (Colo.
App. 2018). In assessing whether a case is moot, the court assumes that the appealing party is
entitled to the “relief sought,” and then the court determines whether obtaining the relief would have
any effect. If not, the case is moot. Stor-N-Lock at *6. An issue becomes “moot” when the relief
granted by the court would not have a practical effect upon an existing controversy. Anderson v.
Applewood Water Association, Inc., 409 P.3d 611, 618 (Colo. App. 2016).
Here, the sign is already built and operating. Asking this Court to determine whether the
Sign Code is constitutional is of no consequence at this juncture. As such, there is no relief that the
Court can grant. Even assuming that the Court were to grant the relief requested, it would not
resolve the matter in this case. The only result would be to provide StreetMedia with the dual
victory of extinguishing the City’s ability to bring a 106(a)(4) challenge while freeing StreetMedia
from any future governmental regulation of its business. The desire of StreetMedia to invalidate the
entire Sign Code is not based on any realistic threat of rights being denied and is too speculative to
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be sustained. The cursory and conclusory statements in paragraphs 37, and 48-50 of the Crossclaim
that this case is ripe because StreetMedia has other leases for properties that do not yet have signs se
is ripe, is insufficient to sustain a constitutional challenge to the Sign Code.
D. TIMING OF DECISION
StreetMedia alleges in paragraphs 21, 45 and 46 of its Crossclaim that the need for a written
resolution from the BCC is unconstitutional because there is no requirement that the resolution be
issued in a “brief, specified time period.” The fact that the decision of the BCC was not issued until
sometime after the public hearing does not constitute a deprivation of StreetMedia’s rights.
StreetMedia has failed to allege any facts regarding how its interests were harmed. It is
StreetMedia’s burden to plead plausible claims, and again in this matter, there is no redress the court
can grant based on the claims as written. Further, the case law regarding requiring a specified time
period for decisions relating to speech is meant to ensure a fair procedure and structure so that if
rights are denied, there is a consistent and rational process to understand the denial. Here, there was
no denial, and there is a regulatory framework that exists. Further, the United States Supreme
Court has already ruled that Colorado’s C.R.C.P. 16(a)(4) process provides sufficient process to
protect first amendment rights.
The City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) is a case that
involved Littleton’s adult business licensing ordinance. In Justice Breyer’s opinion, he wrote that
Colorado judicial officers are capable of wisely exercising their discretion with regard to first
amendment issues. Id. at 782. Unlike a regulatory scheme which is designed specifically to provide
discretion to officials to censor certain types of content, regulations intended to apply reasonable
and non-discretionary criteria as part of a broader licensing structure do not result in the “grave
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dangers of a censorship system” as seems to be argued by StreetMedia. Justice Breyer specifically
cites to C.R.C.P. 106(a)(4) as a procedural protection that provides “reviewing courts with judicial
tools sufficient to avoid delay-related First Amendment harm.” Id. at 782.
This same rationale was approved by the Colorado Supreme Court in City of Colorado
Springs v. 2354 Inc., 896 P.2d 272 (Colo. 1995). The 2354 case involved an ordinance regulating
sexually-oriented businesses. The Colorado Supreme Court mirrored the U.S. Supreme Court by
stating that a regulatory scheme at a local level, coupled with the protections provided by C.R.C.P.
106(a)(4), effectively provide procedural safeguards that limit any improper restriction on speech
and allow such matters to be quickly addressed. See id. Further, in Colorado, a permit process
intended to ensure only that signs comply with a Sign Code's valid regulations is not
unconstitutional. See, Veterans of Foreign Wars v. City of Steamboat Springs, 575 P.2d 835 (Colo.
1978).
The Appeal StreetMedia presented to the BCC for decision addressed four separate parts of
the LUC (1) 10.5.E relating to off-premise signs, (2) 10.11.B.2 relating to 30 foot setbacks, (3)
10.11.B.2 relating to the 240 foot sign area and (4) 10.5.B which deals with how long the flashing
sign can present a message. It had nothing to do with section 10.6 cited by StreetMedia in its
Crossclaim. Here, the record and the entirety of the permit process make clear the County’s review
was intended to ensure that land use regulations such as setbacks, distances from roads, and sighting
concerns for motorists were complied with. All of these concerns are clearly within the authority of
a local government’s land use code. The process of approval of the sign only took approximately
five months, from application for appeal to written decision. StreetMedia has not alleged that this
process or timeframe caused it any particular harm.
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While a court is not bound to [a local land use decision] if there is no competent evidence or
if there is a misapplication, the interpretation of a zoning ordinance by an administrator or zoning
body is entitled to deference. See Whatley v. Summit County Bd. of County Com'rs, 77 P.3d 793,
801 (Colo.App 2003). StreetMedia’s desire to erase the land use discretion of a local governmental
body through the judiciary is especially puzzling in this matter, when its sign was approved by the
government and is already in use. The result of a finding of unconstitutionality of the timing of the
written decision would, however, result in the ability of StreetMedia to resurrect its argument that
the City’s Complaint is untimely. The Court has already ruled on that matter, and the complete
invalidation of the sign code in order to re-introduce that argument is inappropriate.
E. CONSTITUTIONAL RIGHTS
StreetMedia seeks to invalidate the entire Sign Code in the LUC because it relates in some
manner to freedom of speech. However, it is incorrect to state that the First Amendment rights of
StreetMedia supersede any ability of a local government to regulate the placement and operation of
signs. Even assuming that some provision(s) of the LUC Sign Code is unconstitutional, this would
not justify the invalidation of the entire regulatory scheme.
Laws are presumed to be constitutional, and the party attacking the validity of the law must
prove it is unconstitutional beyond a reasonable doubt. Kruse v. Town of Castle Rock, 192 P.3d
591, 597-598 (Colo. App. 2008); Board of County Com’rs of Jefferson County v. Simmons, 494
P.2d 85, 87 (Colo. 1972); Dolan v. Fire and Police Pension Association, 413 P.3d 279, 286 (Colo.
App. 2017).
The party challenging the facial validity of a law must prove beyond a reasonable doubt that
there are “no conceivable set of circumstances” under which the law may be applied in a
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constitutionally permissible manner. People v. Perez-Hernandez, 348 P.3d 451, 456 (Colo. App.
2013) (quoting People v. Montour, 157 P.3d 489, 499 (Colo. 2007)). Administrative rules and
regulations are presumed to comport with constitutional standards and an attacking party must
prove their invalidity beyond a reasonable doubt. Dolan, supra at 286. If a law can be
constitutionally applied under any set of circumstances, a challenge to its facial validity must fail.
People v. Perez-Hernandez, 348 P.3d 451, 456 (Colo. App. 2013) (quoting People v. Montour, 157
P.3d 489, 499 (Colo. 2007)).
As-applied constitutional challenges “concern the governmental body’s quasi-judicial
action” and therefore the reviewing Court’s jurisdiction is pursuant to C.R.C.P. 106(a)(4), not
C.R.C.P. 57. Kruse v. Town of Castle Rock, 192 P.3d 591, 600 (Colo. App. 2008). By contrast, a
facial constitutional challenge “concerns a general rule or policy applicable to an open class of
individuals and/as such, is generally a legislative act subject to review under C.R.C.P. 57 rather than
C.R.C.P. 106(a)(4)…” Id. at 598
In this case, there is no constitutional harm that has been caused. Further, StreetMedia has
not alleged any manner in which the County attempted to make a decision based on the content of
its signs. Instead, what the record demonstrates is that the question dealt with zoning matters such
as line of sight, topography, traffic safety, and aesthetic considerations. These are all legitimate and
constitutional applications of the LUC and its Sign Code. The relief that StreetMedia seeks under
C.R.C.P. 57 is based on speculation, and as a result, the claims should be dismissed.
F. DECLARATORY RELIEF IS NOT APPROPRIATE
A declaratory judgment may not be used to circumvent the appellate process or as a
substitute for that process. Trinen v. City and County of Denver, 725 P.2d 65 (Colo.App. 1986).
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Pursuant to C.R.S. 13-51-110, a Court may “refuse to render or enter a declaratory judgment or
decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty
or controversy giving rise to the proceeding.” Here, there is no meaningful decision that the Court
can render regarding the alleged unconstitutionality of the legislation. This is because the sign is
already built and operational and has already been approved. The only uncertainty that the Court
could attempt to resolve, would be based on some hypothetical future potential application of the
law. Such a determination is improper. Determination of the scope and constitutionality of
legislation in advance of its immediate adverse effect in the context of a concrete case involves too
remote and abstract an inquiry for the proper exercise of the judicial function through a declaratory
judgment. Sullivan v. Board of County Com'rs of Arapahoe County, 692 P.2d 1106, 1110 (Colo.
1984). Proceeding for declaratory judgment must be based upon actual controversy and not be
merely a request for an advisory opinion. Beacom In and For Seventeenth Judicial Dist., Adams
County v. Board of County Com'rs of Adams County, 1983, 657 P.2d 440, 447 (Colo. 1983).
In exercising its discretion to determine whether to allow an anticipatory declaratory
judgment action to proceed, the trial court applies a three-part test: (1) there must be an actual,
justiciable controversy, not the mere possibility of a future controversy; (2) the declaratory
judgment must fully and finally resolve the uncertainty and controversy as to all parties to the
dispute; and (3) the declaratory action must be independent of and separable from the underlying
action. Grange Ins. Ass'n v. Hoehne, 56 P.3d 111, 112 (Colo.App 2002). The party seeking
declaratory relief must demonstrate that the challenged statute or ordinance will likely cause
tangible detriment to conduct or activities that are presently occurring or are likely to occur in near
future. Mt. Emmons Min. Co. v. Town of Crested Butte, 690 P.2d 231, 240 (Colo. 1984).
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In Moss v. Board of County Commissioners for Boulder County, 411 P.3d 918 (Colo.App
2015), the Colorado Court of Appeals addressed an issue where, similar to this case, a court was
asked to issue declaratory relief and injunctive relief based on a county resolution. In that case, the
resolution had to do with whether certain kinds of shooting would be allowed in certain areas of the
county. The Court in Moss did allow the declaratory judgment question to move forward.
However, that case is distinguishable because it involved an exceptionally limited and directly
applicable interpretation of a particular definition, and because there was an issue at hand. Namely,
whether people could continue to shoot bows and arrows in a particular geographic location. Here,
there is no such issue, and there is no such allegation that there is a present issue, only conclusory
allegations that StreetMedia may in the future try to put up other signs, and the BCC may at that
point unconstitutionally restrict its speech.
“The primary purpose of the declaratory judgment procedure is to provide a speedy,
inexpensive, and readily accessible means of determining actual controversies which depend on
validity or interpretation of some written instrument or law.” Toncray v. Dolan, 593 P.2d 956, 597
(Colo. 1979). Declaratory relief is not available for speculative injury, and a trial court only has
jurisdiction when the case contains an actual existing legal controversy rather than the mere
possibility of a future claim. Board of County Com'rs of County of San Miguel v. Roberts, 159 P.3d
800, 810 (Colo. App. 2006). The essential requirement in a declaratory judgment action “is that all
relevant events have occurred so that the court is addressing a present dispute.” Villa Sierra Condo.
Ass'n v. Field Corp., 878 P.2d 161, 165 (Colo. App. 1994). Rule 12(b)(5) allows a challenge to the
legal sufficiency of a pleading, which purports to set up a claim for relief and its function is solely to
obtain the termination of “claims” for which there is no remedy based upon the facts as pleaded.
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Hannon Law Firm, LLC v. Melat, Pressman & Higbie, LLP, 293 P.3d 55 (Colo. App. 2011). Here,
there is no remedy available and the Complaint should be dismissed in its entirety.
In Taylor v. Tinsley, 330 P.2d 954, 956 (Colo. 1958), the Colorado Supreme Court outlined
the impropriety of using a declaratory action when other adequate remedies exist. In doing so, the
Court cited the rationale of the Supreme Court of Indiana as follows: “This court has held that the
only new remedy afforded by the Declaratory Judgment Law is to provide an adequate remedy in
cases where no cause of action has arisen authorizing an executory judgment, and where no relief is
or could be claimed. Relief under this statute cannot be had where another established remedy is
available. It is not intended to abolish the well-known causes of action, nor does it afford an
additional remedy where an adequate one existed before. It should not be resorted to where there is
no necessity for a declaratory judgment.” Taylor v. Tinsley, 138 Colo. 182, 185–86, 330 P.2d 954,
956 (1958) (quoting Hinkle v. Howard, 73 N.E.2d 674, 675 (1947)).
Here, StreetMedia seeks the Court to declare that the LUC Sign Code is facially
unconstitutional. This is improper because there was no unconstitutional application against
StreetMedia, and it calls for a judicial overreach as outlined in several cases. “Facial invalidation of
[a statute] was nevertheless improvident…two of the cardinal rules governing the…courts: “ ‘[o]ne,
never to anticipate a question of constitutional law in advance of the necessity of deciding it; the
other never to formulate a rule of constitutional law broader than is required by the precise facts to
which it is to be applied.’” United States v. Raines,362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d
524 (1960), quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of
Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). Citing a long line of
cases, Raines also held that “[k]indred to these rules is the rule that one to whom application of
19
a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might
also be taken as applying to other persons or other situations in which its application might
be unconstitutional.” These guideposts are at the bottom of the “elementary principle that the
same statute may be in part constitutional and in part unconstitutional, and that if the parts are
wholly independent of each other, that which is constitutional may stand while that which
is unconstitutional will be rejected.” Allen v. Louisiana, 103 U.S. 80, 83–84, 13 Otto 80, 26 L.Ed.
318 (1881). Nor does the First Amendment involvement in this case render inapplicable the rule
that a federal court should not extend its invalidation of a statute further than necessary to dispose of
the case before it. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502 (1985). It is well-
established that “if a statute is capable of alternative constructions, one of which is constitutional,
then the constitutional interpretation must be adopted.” People v. Iannicelli, 454 P.3d 314, 319
(Colo. App. 2017).
In paragraphs 48, 49, and 50, of StreetMedia’s Crossclaim, StreetMedia provides conclusory
statements that it is in the business of selling advertising space on signs, and that the Court can help
resolve this matter by making a declaration that the LUC Sign Code is unconstitutional. However,
this assertion is too speculative and insufficient to survive a motion to dismiss. Even assuming that
the Court were to find that some aspect of the LUC Sign Code is unconstitutional, the appropriate
remedy is the invalidation of that particular provision, not the entirety of the regulation.
G. INJUNCTIVE RELIEF IS NOT AVAILABLE OR APPROPRIATE
In order to obtain a preliminary injunction, the moving party must satisfy six criteria: (1) a
reasonable probability of success on the merits; (2) a danger of real, immediate and irreparable
injury which may be prevented by injunctive relief; (3) lack of a plain, speedy and adequate remedy
20
at law; (4) no disservice to the public interest; (5) balance of equities in favor of the injunction; and
(6) the injunction will preserve the status quo pending a trial on the merits. Tesmer v. Colorado
High School Activities Ass’n, 140 P.3d 249, 252 (Colo. App. 2006), City of Golden v. Simpson, 83
P.3d 87, 96 (Colo. 2004). A preliminary injunction is designed to preserve the status quo or protect
rights pending the final determination of a cause, its purpose is to prevent irreparable harm prior to a
decision on the merits of a case. City of Golden at 96. The requirements for a permanent injunction
are essentially the same; however, the applicant must show actual success on the merits rather than
merely a reasonable probability. Langlois v. Board of County Com'rs of County of El Paso, 78 P.3d
1154, 1157 (Colo.App. 2003). StreetMedia fails to satisfy each of these criteria.
StreetMedia does not have a likelihood of success on its merits because it has already
obtained the permits it needs to construct its sign. Further, it is essentially arguing against itself in
that it is seeking to invalidate the code and decision-making process that is being collaterally
attacked by the City. The billboard is already constructed and in use. The status quo is that the
billboard exists and operates with approval from the County. Therefore, there is no threat of any
real, immediate or irreparable injury. StreetMedia has not even attempted to allege any harms that
have or may befall it beyond conclusory statements.
The entire process of approving the billboard took place in previously noticed public
meetings of which both Plaintiff and StreetMedia had the opportunity to participate. No party has
sought to prevent the construction of the billboard. Plaintiffs were aware of the granting of the
permit prior to construction and did not seek an injunction at that time. No formal attempt was
made to stay the construction, and no bond has been posted. There were and are other available and
appropriate remedies at law, such as the C.R.C.P. 106(a)(4) claim that has already been made.
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StreetMedia now attempts to add in constitutional claims regarding its First Amendment rights, for a
sign that has received approval from the government.
There is a public interest in the existence of a code-regulated signage, for legitimate
government interests such as land use planning, maintenance of aesthetic value, as well as traffic
safety. The balance of the equities does not weigh in favor of allowing StreetMedia to attempt to
judicially overturn a legislative scheme in order to further its own interests. Particularly when it was
allowed to build the sign in this case. Plaintiffs only justification for the injunction is a conclusory
statement in paragraph 55 that it will suffer damages as a result of enforcement of the
unconstitutional sections of the Sign Code. This is not sufficient and the claim for injunction should
be dismissed.
V. CONCLUSION
StreetMedia’s Crossclaim asks the Court to declare its rights, in a situation where its rights
have not been limited and there is no legitimate threat that they will be limited. The claims further
seek to enjoin the County from improperly enforcing its code--the same code which the BCC used
to approve the sign that StreetMedia is currently using for advertising. The contradictory and
competing arguments employed by StreetMedia indicate its desire to clear any regulatory hurdles by
not only prohibiting the City’s ability to assert a claim under C.R.C.P. 106(a)(4), but also by
removing any and all regulatory oversight to its activities in the County. StreetMedia’s argument
that its First Amendment rights in building and selling advertising space supersedes and eliminates
all other considerations is inaccurate. Here, the BCC approved the sign. To the extent that the City
and StreetMedia have a disagreement over the sign, its placement, or its style, the appropriate
22
mechanism to resolve that dispute is not through claims that BCC has violated StreetMedia’s
constitutional rights.
WHEREFORE, the Defendants request this Court dismiss StreetMedia’s Crossclaim in its
entirety.
Dated: January 15, 2021
LARIMER COUNTY ATTORNEY’S OFFICE.
By: s/Frank N. Haug
Frank N. Haug, Reg. No. 41427
Senior Assistant County Attorney
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CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing Defendant’s
DEFENDANT BOARD OF COUNTY COMMISSIONERS’ MOTION TO DISMISS
CROSSCLAIM was served on the parties herein by depositing same in the U.S. mail, first class,
postage prepaid or by personal service this 15th day of January , 2021, addressed to:
Andrew D. Ringel
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
ringela@hallevans.com
John R. Duval
Claire Havelda
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
jduval@fcgov.com
chavelda@fcgov.com
Todd Messenger
Andrew J. Helm
Fairfield and Woods, P.C.
1801 California Street, Suite 2600
Denver, Colorado 80202-2645
tmessenger@fwlaw.com
ahelm@fwlaw.com
s/Jennifer D. Infeld