HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 039 - Larimer County's Answer Brief
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Larimer County, Colorado, District Court
Larimer County Justice Center
201 La Porte Avenue, Suite 100
Fort Collins, Colorado 80521-2761
(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
William G. Ressue, Reg. No. 34110
Jeannine S. Haag, Reg. No. 11995
Frank N. Haug, Reg. No. 41427
Larimer County Attorney’s Office
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone (970) 498-7450
wressue@larimer.org
jeanninehaag@larimer.org
haugfn@co.larimer.co.us
Case No. 2020CV30580
Courtroom 4B
ANSWER BRIEF OF BOARD OF COUNTY COMMISSIONERS
OF LARIMER COUNTY, COLORADO
Defendant Board of County Commissioners of Larimer County, Colorado, by and through
the Larimer County Attorney’s Office, respectfully submits this Answer Brief.
I. INTRODUCTION
Plaintiff the City of Fort Collins is referred to as “City”; Defendant StreetMediaGroup, LLC
is referred to as “StreetMedia”; and Defendant Board of County Commissioners of Larimer County
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is referred to as “Board.” References to the Certified Record will be by Volume, page number and,
if applicable, line number. (Vol., p., l:)
II. STATEMENT OF THE CASE
The City seeks judicial review of the Board’s quasi-judicial decision approving
StreetMedia’s application to install an advertising sign that deviates from various sign standards in
the Larimer County Land Use Code (the “Application”). Specifically, the City alleges the Board
abused its discretion by misapplying provisions in the Larimer County Land Use Code (“LUC”) and
that the record has no competent evidence to support the Board’s approval of the Application.
Review of a quasi-judicial decision under C.R.C.P. 106 has a very narrow scope, and the
Board’s decision and application of its LUC are afforded great deference. The LUC has certain
standards for signs that must be adhered to unless the Board approves a deviation. The criteria to
approve a deviation are expressly provided in the LUC, and the Board (not County staff nor the
City) is the quasi-judicial decision maker that decides whether such criteria have been satisfied
based on evidence in the record. The opinions of County Staff and the City are relevant and
valuable, but do not control. Whether the Board has previously approved prior applications to
deviate from the sign standards is irrelevant, as each application stands on its own merits. The
standard of review in this case is whether there is any evidence in the record to support the Board’s
decision. Here, the Board received conflicting evidence about the applicable review criteria and
reached a decision that the City disagrees with. That is not a basis on which the Board’s decision
can be vacated. Because the record includes competent evidence to support the Board’s decision,
there was no abuse of discretion and the decision must be affirmed.
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III. ISSUE ON REVIEW
Whether the Board abused its discretion by misinterpreting and misapplying the Larimer
County Land Use Code and whether there is sufficient evidence in the record to support the
decision.
IV. STANDARD OF REVIEW & REGULATORY OVERVIEW
A. Judicial Review of the Board’s Application of Law.
“In determining whether there was an abuse of discretion, courts may consider whether
there was a misinterpretation or misapplication of governing law.” Sierra Club v. Billingsley, 166
P.3d 309, 312 (Colo. App. 2007). When a local regulation is clear and unambiguous, it should be
construed as written so as to carry out the intent of the legislative body; however, “[i]f the language
of an administrative rule is ambiguous or unclear, [the court] give[s] great deference to an agency’s
interpretation of a rule it is charged with enforcing, and its interpretation will be accepted if it has a
reasonable basis in law and is warranted by the record.” Sierra Club, supra at 312. “If there is a
reasonable basis for the agency’s application of the law, the decision may not be set aside on
review.” Platte River Envtl. Conservation Organiz. v. Nat’l Hog Farms, 804 P.2d 290, 292 (Colo.
App. 1990) (internal citations omitted). “Administrative interpretations are most helpful when the
subject involved calls for the exercise of technical expertise or when the statutory language is
susceptible of more than one reasonable interpretation.” Id. “Generally, a reviewing court should
defer to the construction of a statute by the administrative officials charged with its enforcement. If
there is a reasonable basis for an administrative board’s interpretation of the law, [the reviewing
court] may not set aside the board’s decision.” Lieb v. Trimble, 183 P.3d 702, 704 (Colo. App.
2008).
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B. Judicial Review for Support in the Record for the Board’s Decision.
A court’s review of a quasi-judicial action under Rule 106(a)(4) “shall be limited to a
determination of whether the body or officer has exceeded its jurisdiction or abused its discretion,
based on the evidence in the record before the defendant body or officer.” Rule 106(a)(4)(I),
C.R.C.P. The object of a Rule 106 proceeding is not to settle or determine disputed facts, but to
investigate and correct errors of law of a jurisdictional nature and abuses of discretion. Doran v.
State Bd. of Medical Exmrs., 78 Colo.153, 240 P. 335, 337 (1925). The merits of the case are not
involved. State Bd. Of Medical Exmrs. v. Noble, 65 Colo. 410, 177 P. 141 (1918). A mere
disagreement with a ruling is not a sufficient showing of abuse of discretion. Bristol v. County
Court, 143 Colo. 306, 352 P.2d 785, 786 (l960).
An abuse of discretion occurs only when there is no competent evidence to support the
decision. Ross v. Fire & Police Pension Ass’n., 713 P.2d 1304, 1305 (Colo. 1986). “No competent
evidence” means that the ultimate decision of the lower tribunal is so devoid of evidentiary support
that it can only be explained as an arbitrary and capricious exercise of authority. Bentley v. Valco,
Inc., 741 P.2d 1266, 1267 (Colo. App. 1987). A Board’s “findings may not be set aside merely
because the evidence was conflicting or susceptible of more than one inference.” Arndt v. City of
Boulder, 895 P.2d 1092, 1095 (Colo. App. 1994), cert. denied (1995); see also Bristol v. County
Court, 352 P.2d 785, 786 (Colo. 1960) (finding that mere disagreement with a ruling is not a
sufficient showing of abuse of discretion). The proper function of a district court under Rule 106
action is to affirm a lower tribunal where there is any competent evidence to support the tribunal’s
decision. Bauer v. City of Wheat Ridge, 182 Colo. 324, 513 P.2d 203, 204 (1973).
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C. Larimer County Sign Standards and Requirements.
Unless a deviation is approved by the Board, the relevant sign standards and regulations are
in Section 10 of the LUC as follows:
• Maximum sign-area is 90 feet per side with a maximum height of 18 feet above grade. Vol.
V, LUC §10.11.B.2.
• Setback for signs is at least 36 feet from right-of-way. Vol. V, LUC §10.11.B.2;
§10.11.B.2.3.
• Flashing, rotating, animated or otherwise moving features are not permitted, and message
signs cannot change more frequently than once every minute. Vol. V, LUC §10.5.B.
• Off-premises signs are not permitted (with certain exceptions that are not relevant in this
action). Vol. V, LUC §10.5.E.
D. Deviation from Sign Standards.
The LUC allows applicants to “appeal” the sign standards and regulations which, if
approved by the Board, allows for deviation from such standards and regulations. To approve an
appeal from the applicable requirements of the sign standards (found in Section 10 of the LUC), the
Board must consider the following review criteria and find that each has been met or is inapplicable:
1. Approval of the appeal is consistent with the purpose and intent of Section 10 of the
LUC;
2. 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 the LUC is strictly enforced;
3. 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 LUC.
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Vol. V, LUC §22.2.5.
With respect to review criterion “1” above, the purpose and intent of the sign standards in
Section 10 of the LUC is 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.” Vol. V, LUC §10.1.
V. ARGUMENT
A. Summary of Argument.
The Parties are in agreement as to the appropriate standards to apply in this case.1 The LUC
specifically provides in Section 22.2.5 that an applicant may appeal the standards of the Sign Code
in Section 10 of the LUC to the Board. Further, the parties agree as to the three applicable criteria
when the Board decides such appeals: (1) consistency with the purposes and intents of the LUC, (2)
exceptional or extraordinary circumstances resulting in undue hardship where LUC strictly
enforced, and (3) economic and marketing advantage. In this matter, the record is replete with
discussion and evidence related to each of these criteria. The Board considered and weighed each
criterion carefully. Further, although the City repeatedly references the comments made by staff
and in the City’s referral documents, the ultimate decision on the appeal is left to the discretion of
the Board as the quasi-judicial decision maker. The input of the staff and the referral agencies are
important for consideration but are in no way binding on the Board.
1 See Plaintiff’s Opening Brief, page 17, Defendant StreetMedia’s materials, Vol. I p. 24.
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Further, the City argues that the IGA between the City and the County should be considered,
the implication being that it somehow restricts the authority of the Board to make a decision
contrary to the City’s liking. However, as noted by the assigned County staff planner Michael
Whitley, the recommendation of the City “is not binding on either staff or the Board of County
Commissioners.” Vol. II-A, pp. 16-17. Per the IGA, the City’s input is to be considered but the
ultimate decision remains with the Board.
Although the City states there was a misapplication and misinterpretation of the LUC, the
substance of its arguments is really a challenge to the weight of the evidence. The City does not
adequately clarify how the Code was misapplied or misinterpreted, as a result the misapplication
and misinterpretation arguments are addressed together with the abuse of discretion arguments.
Particularly because the standard for misapplication or misinterpretation gives great deference to the
decision making body, and if there is a reasonable basis for the body’s application, the decision may
not be set aside. Platte River, 804 P.2d 290, 292. Effectively, the City invites the Court to reweigh
the evidence and come to a different conclusion than the Board. This ignores the role of a
reviewing court in a C.R.C.P. 106 proceeding, which is to review the record for any competent
evidence in support of the Board’s decision. Ross v. Denver Dep’t of Health and Hosp., 883 P.2d
775, 778 (Colo. App. 1994) (citing Sundance Hills Homeowners Assoc. v. Bd. of County Comm’rs,
534 P.2d 1212, 1216 (Colo. 1975)). Here, the Board held a public hearing, at which no one, not
even the City, appeared to make public comment. The Board asked a lot of questions and had
lengthy deliberations. As part of the quasi-judicial proceedings, StreetMedia submitted a nearly 50-
page brief with argument and evidence about each review criterion and how it was satisfied by the
Application. Vol. I, pp. 16-61. As further argued in the paragraphs below, the Board appropriately
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considered the applicable review criteria for StreetMedia’s appeal, and the decision granting the
appeal is supported by competent evidence in the record.
B. The decision of the Board was based on careful consideration of the purpose and
intents of the LUC and the record contains ample evidence related to this criterion.
The introductory paragraph of the LUC Sign Code includes an explicit statement on its
purpose. LUC §10.1. Various purposes are laid out relating to health and safety, aesthetic values,
promoting identification of uses and locations within the County, and protecting property values.
The Findings and Resolution of the Board specifically addressed how this Application meets these
purposes.
“The appeal is consistent with the purpose and standards because it will remove clutter and
protects and maintains the visual appearance and property values of the area.” Vol. IV, p. 3. The
Findings and Resolution continued to more specific analysis relating to the sign in this particular
area stating “the sign is located in an area with 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 dwell time. The appeal is consistent with
implementation of the sign code because it removes clutter including removal of approximately
eight other signs….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.” Id. The Board further demonstrated its commitment to the intents and purposes of the Sign
Code in paragraph 8 of the Findings and Resolution by clarifying that StreetMedia would be
removing 8 sign faces from the county thereby reducing clutter. Vol. IV, p. 2.
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In their oral findings, each member of the Board explained their analysis relating to the
purpose and intent of the code. Commissioner Donnelly discussed the need to support small
businesses through availability of advertising so that people can locate them and their services. Vol.
II-A, pp. 69-70. He further discussed StreetMedia’s commitment to remove eight sign faces in
Larimer County and his familiarity with those other signs. Id. p. 72. He stated clearly “as far as
actually implementing the Land Use Code as we, as Commissioners, as our community has
described it to us, this actually does more for that proposal, and to move that idea forward than
probably anything else we've done in the last decade.” Id. at p. 72, l:18-22. Commissioner
Donnelly further stated that “this is very positive event for beautifying Larimer County roadways,
for still giving opportunity for small business to be able to communicate with the potential
customers… the technology exists to really mitigate a lot of the negative impacts of a lighted sign.
And so, I think this is a very positive proposal.” Id. at p. 73. Commissioner Donnelly concluded by
noting that “this is a very creative solution that forward[s] the objectives of the county to remove
billboards, also gives the folks an opportunity to continue their own business and help other
businesses.” Id. at p. 74. Commissioner Kefalas, in his discussion on the matter, discussed the
various benefits of a sign like this for the community. Id. at p. 77. As well as stating that his
decision is influenced by the new technology that this sign uses. Id. at 74, l:18-19.
Commissioner Johnson’s comments indicate a clear deliberation and weighing of the factors
involved. In the introduction to his comments, he stated explicitly “My job is to interpret the
Application in light of the Code in front of us.” Id. at 78, l:16-17. In considering the Application’s
consistency with the purposes of the LUC, Commissioner Johnson noted “the removal of other
signs that the Land Use Code does speak to clutter and visual appearance.” Id. at l:18-21. Further,
he noted the commercial nature of the area in which the sign would be located and how the
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proposed sign would not add to the clutter in that area. Id. at l:22-24. Commissioner Johnson also
referenced the proposed signs location along an Interstate and another road with a 55 mph speed
limit and how the technology used for the sign and the background illumination proposed by the
Application was appropriate under the circumstances. Id. at p. 80. Commissioner Johnson declared
his support for the Application, a motion was made, and the Application was approved unanimously
by the Board. Id. at p. 81. The Board’s deliberation clearly demonstrates that it considered the
purposes and intent of the sign code, namely aesthetic values, location and identification of
businesses, health, welfare, and safety of the public, and the avoidance of clutter. Further, despite
the City’s statement that this criterion is only mentioned in the staff report 2, the Board’s Findings
and Resolution expressly identifies the criterion and includes specific findings.
In addition to the Board’s deliberation, the record shows argument and evidence from
StreetMedia to support the Board’s finding that the first criterion was satisfied. In StreetMedia’s
summation during the hearing it noted that:
[The proposed sign] furthers the purpose/intent of the Sign Code. It advances
the health, safety, and welfare. It provides for safe and effective identification
of uses. It avoids sign clutter and maintains visual appearance of the County
through high-quality design and placement in relation to adjacent, elevated
street. And five signs [8 sign faces] will be removed. This sign proposal does
not affect property values, as is demonstrated by the empirical study that we
provided to you.
Id. at pp. 60-61.
Clearly, StreetMedia provided, and each member of the Board carefully considered, the
evidence relating to the intents and purposes of the LUC and the Board made appropriate findings
that are supported by such evidence. There are also multiple examples of less explicit evidence
2 Plaintiff’s Opening Brief, p. 18.
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relating to the intent and purpose of the LUC throughout the record. For example, Commissioner
Kefalas specifically addressed the consolidation of signage related to this appeal. Vol. II-A, p.14,
l:2-7. Commissioner Donnelly addressed the context around the sign as being near large scale
commercial uses. Vol. II-A, p. 18, l:23-25. This proximity to large commercial uses is also noted in
StreetMedia’s presentation and in their brief submitted to the Board. See Vol. II-A, p. 43, l:22-25;
Vol. I, pp. 21-23. There are various references to the sign’s ability to successfully co-exist with the
surrounding context regarding wildlife, natural areas, and lighting. See Vol. II-A, p. 17, l:22
through p. 18, l:8; Vol. II-A, p. 9, l:16-22; Vol. II-A, pp. 64-68.
The City incorrectly argues that the record does not contain evidence relating to the
purposes and intent of the LUC sign code. The evidence and deliberation outlined above clearly
indicate that the Board appropriately considered the matter and made a finding based on ample
evidence. The City simply ignores the fact that the Code specifically calls out the removal of clutter
as a legitimate goal. Further maintaining visual appearance of the County, providing citizens with
information as to services and businesses within the County, and protecting the health safety and
welfare are all legitimate goals of the Sign Code that were evaluated on evidence presented to the
Board.
C. The Board made adequate findings relating to hardship and exceptional or
extraordinary circumstances and the record contains significant evidence related to
this criterion.
The second criterion applicable to the Board’s decision was to consider whether 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 LUC is strictly enforced. The Board’s Findings and
Resolution addressed this criterion by stating: “The Property is located at an elevation below the
adjacent roadways, making placement and view of a sign more difficult. Further, the adjacent
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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 the strategies of directional
lighting and dwell time as indicated in the Application. The placement of the sign as
indicated…will increase its viewability and make it safer for motorists to view.” Vol. IV, p. 3.
StreetMedia presented, and the Board considered, various reasons why strict enforcement of
the LUC would result in a hardship in this location. StreetMedia testified that its Application
presents a “classic case” for a variance or an appeal, given the topography of the area and its
proximity to major roadways. Vol. II-A, p. 46, l:12-16. The unique physical nature of the property
was outlined in StreetMedia’s brief filed with the Board in support of the Application. Vol. I, pp.
21-23. StreetMedia also presented various photographs of the area and showed that “[t]he grade
installation site is 16-feet below adjacent sidewalk. Strict compliance would deprive the Applicant
of being able to have a sign at all here that made any sense.” Vol. II-A, p. 61, l:8-11.
Because of the topography of the location, StreetMedia demonstrated that although the proposed
sign was 30-feet-tall, it would practically appear only as a 14-foot-tall sign. Id. On this point
StreetMedia noted that without the height modification, a sign would not be placed in this location
because of the visual obstruction. Id. at p. 60, l:14-16.
StreetMedia presented further evidence that the setback variance is needed to ensure safe
viewing of the sign. Strict adherence to the code would increase the lack of safety of individuals
viewing the sign, as well as decrease the ability of those individuals to see the sign. Id. at p. 55,
l:16-25. With regard to the dwell time, StreetMedia noted that based on a Federal Highway
Administration study, which was provided to the Board, the proposed six second loop is safe. Id. at
p. 58, l:12-14; see also Vol. I, pp. 78-80. In its brief in support of the Application, StreetMedia
discussed hardship for each separate appeal issue and included an executive summary. See Vol. I,
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pp. 16-61, (executive summary on page 51.) StreetMedia specifically noted that given the size and
speed of Harmony Road, a sign face of 90 feet is insufficient to deliver a message to the traveling
public. See Id., pp. 42-43.
StreetMedia further noted that the property is unique because it is one of the few on such a
large interchange at the corner of an interstate and a major road. Id. at p. 49. StreetMedia further
noted that strict application of the LUC, especially given the size of the adjacent roads, the absence
of residential property nearby, the commercial nature of the area, as well as implementation of new
technological techniques, would constitute a hardship. See Id. Commissioners Donnelly and
Johnson similarly commented on the nature of the area noting its heavy commercial use. Vol. II-A,
p. 18, l:23-25; Id. at p. 78, l:22-24. At this location, as discussed by StreetMedia and the Board,
strict enforcement of the sign code regulations would prohibit a meaningful sign from existing.
The Board’s discussion of the Application during the quasi-judicial hearing reflects their
determination that the subject property is unique, and strict application of the sign regulations would
result in a unique/peculiar or undue hardship. In addition to the Board’s comments referenced
above, Commissioner Johnson directly discussed the matter of hardship and the elevation and
topography of the surrounding roadways. Id. at p. 24, l:22-25 to p. 25, l:1-15. He noted that that
without a variation to the sign code, because of the topography and context, StreetMedia will suffer
harm as a result, and commented “I do think there is a hardship because of the topography of the
site having a pretty significant elevation below the roadway.” Id. at pp. 24, 79, l:6-8.
Commissioner Donnelly also commented on the demonstrated uniqueness of the property and the
hardship that would be experienced without the appeal (Vol. II-A, p. 69, l:15-16), and found this is a
“high traffic, high-traveled roadway with higher speeds.” Id. at p. 71, l:2-3. The record contains
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ample competent evidence to support the Board’s conclusion that strict enforcement of the sign
regulations would present a peculiar and undue hardship.
With respect to this criterion, the City notes StreetMedia’s status as a leaseholder in the
subject property rather than the “owner” and argues only hardships incurred by the fee owner are
relevant. The City’s application of this criterion is overly literal and unreasonable. It is clear in the
record that StreetMedia is the applicant and has a lease interest in a portion of the property for the
purpose of installing a sign. Vol. I, p. 106. It is also established that the fee owner of the property is
the State of Colorado Land Board, whose mission is to raise money for schools. Id. As the holder
of an interest in the property, StreetMedia clearly falls within the criterion’s reference to hardship.
The purpose of the inquiry for this criterion is to weigh the impacts of strictly applying standards in
the LUC. Why should it matter that the hardship is suffered by one holding a legal interest in a
property rather than the fee owner? It should not matter, and the record reflects that the Board did
not draw any such distinction when applying this criterion. Regardless, in addition to the hardship
related to StreetMedia, the record has competent support for a hardship on the State Land Trust of
approximately $1,000,000.00 in lost revenue if StreetMedia is unable to install the proposed sign.
Id. at p. 38, l:23-25. As argued by StreetMedia in the quasi-judicial proceedings, failure to allow the
appeal to move forward would result in a hardship on the State Land Trust because the standards as
written make it impractical to build a sign and for the State Land Trust to pursue its mission to
generate revenue. See Id. at p. 46, l:17-21; p. 60, l:14-16.
Finally, the City asks the Court to discount the Board’s consideration of the economic
downturn or the aid that this sign may provide to the businesses and citizens of the County. This
issue was discussed by the Board, and the Board determined the Application to be consistent with
the purpose of the sign code by providing citizens and businesses with “effective identification of
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uses and locations within the County.” To grant the Application, the Board was required to
consider a broad range of factors, including the purposes of the sign code “to protect the health,
safety and welfare of the public; [and] to provide the public and property owners with an
opportunity for safe and effective identification of uses and locations within the county….” Vol. V,
LUC, §10.1. The Board’s reference to the condition of the local economy and how StreetMedia’s
proposed sign could provide advertising opportunities in aid of local businesses was responsible and
proper, not evidence of an abuse of discretion.
In summary, the City argues there is no evidence of exceptional or unusual circumstances
warranting approval of StreetMedia’s Application, and no hardship will be suffered if deviation
from the sign standards is not granted. However, as shown above, there is competent evidence in
the record to support the Board’s findings to the contrary and its application of the LUC. The Board
recognizes the contrary arguments and evidence presented by the City, but the Court’s role in this
action is not to reweigh the evidence.
D. The Board reasoned that the sign would increase economic and marketing
competitiveness.
The Findings and Resolution addresses the issue of any economic and marketing advantage
and states: “The appeal will not result in an unfair business advantage as the sign will permit variety
of non-profit and business advertisement in a location that is highly visible to the public.” Vol. IV,
p. 4. The Board pointed out on various instances during the hearing that they wanted to expand
competition and equalize the playing field by allowing StreetMedia’s sign. This is consistent with
the purpose and intent of the LUC to provide the public and property owners with an opportunity
for safe and effective identification of uses and locations within the County. Commissioner
Donnelly noted that “these cases…play a significant role in allowing our small local businesses to
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be able to reach customers that they normally would have no opportunity to do. And it’s even more
stark when you think about it being right across the street from a Walmart. It gives a small shop, a
small business…the opportunity to at least let potential customers know that they are in the
marketplace.” Vol. II-A, p. 70, l:9-16.
Commissioner Johnson addressed this issue stating: “I don’t really think there’s any
economic or marketing advantage over other businesses…in this particular location, it’s not
advertising a business that’s competing with any of the other businesses in the area, so I don’t think
the appeal would create any economic or marketing advantages.” Id. p. 79, l:21-25; p. 80, l:1-3.
Commissioner Kefalas similarly noted a commitment to providing the public with knowledge of the
variety of businesses, non-profits, and services available in the county. See Id. at p. 77, l:1-11. He
also noted that this is sign provides a useful “tool” for accomplishing the goal of equalizing
advertising space. See Id.
StreetMedia explained that the advertising industry works to level the playing field between
businesses that are on main roads and those that are not. Id. at p. 47, l:6-8. It further explained that
this sign will serve to create a more competitive rather than less competitive landscape for
businesses in Larimer County. See Id. at l:9-12. StreetMedia’s brief filed with the Board also stated
“this sign will not be perceptibly more prominent than other signs in the area, further it will tend to
level the playing field among businesses.” Vol. I, p. 35. It is clear from the record that the Board
considered the addition of the sign to increase competitiveness rather than stifle it. Further, the
Board noted that due to the heavily commercial nature of the area where the sign was proposed, the
proposed sign would not give StreetMedia an advantage over other sign companies. Instead, by
allowing variances in the height and setback requirements, it provides StreetMedia the opportunity
to compete with other advertisers in the area. The record shows the Board made a careful analysis
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of the economic and market advantage criterion and its decision is supported by competent evidence
in the record.
E. Collateral Issue-Other Sign Code Appeals.
The City references the absence of previous approvals by the Board of similar sign code
appeals, suggesting it indicates deficiency with the Board’s decision here. The Board strongly
disagrees because it is untrue that there are no previously approved sign appeals and, regardless, this
line of argument is irrelevant.
The Board’s decisions on other sign code appeals are irrelevant to the Court’s review under
C.R.C.P. 106. Each application before the Board is decided on the merits of that application. The
Court’s charge in this action is to determine whether there is any competent evidence in the record
to support the Board’s decision granting StreetMedia’s Application. The outcome of other
applications for different signs in different areas has no relevancy to the Court’s charge. Further, to
the extent the Court is interested in prior decisions and rationale by the Board, the record shows
Commissioner Donnelly’s reference to the general attributes historically considered by the Board
for sign code appeals: “every appeal, I think, that we have ever approved - this Board of County
Commissioners ever approved has been on a high-traffic, high-traveled roadway with higher speeds.
And this certainly meets that condition.” Vol. II-A, pp. 71-72. Commissioner Johnson similarly
had dialogue with Larimer County Planner Michael Whitley during the hearing about previous sign
code appeals involving height and topography considerations. Vol II-A, pp. 25-26. Mr. Whitley
testified that in the 12 years he has worked for Larimer County he can recall only five appeals
related to signs and that “we actually see very few sign appeals come through.” Id. at l:6. That
conversation went on to discuss other approved sign appeals on Mulberry and I-25 for American
Furniture Warehouse and Tractor Supply. Id. While the Board believes the outcome of prior sign
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code appeals is irrelevant to the question at hand—whether there is competent record support for the
Board’s decision—the City’s argument that no similar sign code appeals have been approved by the
Board is inaccurate.
VI. CONSTITUTIONAL CLAIMS
The County has filed a motion to dismiss the constitutional crossclaims filed by StreetMedia
and does not consider such claims to be germane to this Rule 106 brief. Further, as previously
noted, the County approved StreetMedia’s sign and it has already been built. As shown above, the
record has substantial support for the Board’s decision and StreetMedia’s constitutional arguments
have no bearing on the adequacy of the record.
VII. CONCLUSION
Based on the foregoing arguments and authority and the support in the record considered as
a whole, the Board respectfully requests the Court affirm its decision.
Dated: February 26, 2021
LARIMER COUNTY ATTORNEY’S OFFICE
By: s/Frank N. Haug
William G. Ressue, Reg. No. 34110
Jeannine S. Haag, Reg. No. 11995
Frank N. Haug, Reg. No. 41427
Larimer County Attorney’s Office
Post Office Box 1606
Fort Collins, Colorado 80522
Telephone (970) 498-7450
wressue@larimer.org
jeanninehaag@larimer.org
haugfn@co.larimer.co.us
19
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing ANSWER BRIEF
OF BOARD OF COUNTY COMMISSIONERS OF LARIMER COUNTY, COLORADO was
served via Colorado Court’s E-filing system this 26th day of February, 2021, 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
Amanda Jokerst
Fairfield and Woods, P.C.
1801 California Street, Suite 2600
Denver, Colorado 80202-2645
tmessenger@fwlaw.com
ajokerst@fwlaw.com
s/Jennifer D. Infeld