HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 043 - City's Response To Motion To DismissDISTRICT COURT, COUNTY OF LARIMER,
COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, Colorado 80521-2762
(970) 498-6100
______________________________________________
Plaintiff: THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation,
v.
Defendants: BOARD OF COUNTY COMMISSIONERS
OF LARIMER COUNTY, COLORADO;
STREETMEDIAGROUP, LLC
______________________________________________
Andrew D. Ringel #24762
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
John R. Duval #10185
Deputy City Attorney
Claire Havelda #36831
Assistant City Attorney
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
970-221-6652
Fax: 970-221-6327
jduval@fcgov.com
chavelda@fcgov.com
Attorneys for Plaintiff
▲COURT USE ONLY ▲
_________________________
Case Number: 2020CV030580
Division: 4B
PLAINTIFF’S RESPONSE TO DEFENDANT STREETMEDIAGROUP, LLC’S
MOTION TO DISMISS PLAINTIFF’S COMPLAINT
DATE FILED: March 17, 2021 2:18 PM
FILING ID: 8BE4092D5050A
CASE NUMBER: 2020CV30580
2
Plaintiff City of Fort Collins, by and through its attorneys, Andrew D. Ringel, Esq., of Hall
& Evans, L.L.C. and John R. Duval, Esq., Deputy City Attorney, and Claire Havelda, Esq.,
Assistant City Attorney, of the Fort Collins City Attorney’s Office, hereby respectfully submits
this Response to Defendant StreetMediaGroup, LLC’s Motion to Dismiss Plaintiff’s Complaint,
as follows:
INTRODUCTION
Defendant StreetMediaGroup, LLC (“StreetMediaGroup”) filed its Motion to Dismiss
Plaintiff’s Complaint (“Motion”) on February 24, 2021, asserting this Court should dismiss
Plaintiff’s Complaint on the basis of mootness premised on the construction and operation of the
electronic billboard on the property located at 4414 East Harmony Road which is the subject of
this litigation. Plaintiff City of Fort Collins (“City”) respectfully submits this Response to the
Motion. No legitimate basis exists for this Court to dismiss the Plaintiff’s Complaint on mootness
grounds.
ARGUMENT
I. THE CITY’S CHALLENGE TO THE BOARD OF COUNTY COMMISSIONERS
OF LARIMER COUNTY’S JULY 28, 2020, FINDINGS AND RESOLUTION
APPROVING THE STREETMEDIAGROUP SIGN APPEAL IS NOT MOOT
OR AN EXCEPTION TO THE MOOTNESS DOCTRINE APPLIES
“A case is moot when a judgment would have no practical legal effect on the existing
controversy.” Diehl v. Weiser, 443 P.3d 313, 316 (Colo. 2019); Van Schaack Holdings, Ltd. v.
Fulenwider, 798 P.2d 424, 426 (Colo. 1990). “Still, an issue is not moot when the judgment may
result in significant collateral consequences to a party. Thus, in deciding whether an issue is moot,
the court must consider both the direct and collateral consequences that can result from the
judgment.” People ex rel. C.G., 410 P.3d 596, 599 (Colo. App. 2015) (citations and parentheticals
3
omitted). “Whether collateral consequences preclude an issue from being deemed moot turns on
showing the reasonable possibility of such consequences. In other words, the standard requires a
demonstration of more than an abstract, purely speculative injury, but does not require proof that
it is more probable than not that the prejudicial consequences will occur.” Id. (citations and
parentheticals omitted). Two exceptions to mootness exist. First, an exception to the mootness
doctrine allows a court to address issues that are capable of repetition yet evade review. Nowak
v. Suthers, 320 P.3d 340, 343-44 (Colo. 2014); In re Application of Water Rights of Well
Augmentation Subdistrict of the Cent. Colo. Water Conservancy Dist., 221 P.3d 399, 416 (Colo.
2009); State Bd. of Chiropractic Exam’rs v. Sterjnholm, 935 P.2d 959, 971 (Colo. 1997). Second,
an issue of great public importance is another exception to mootness. Grossman v. Dean, 80 P.3d
952, 960 (Colo. 2003); Englewood Police Benefit Ass’n v. City of Englewood, 811 P.2d 464, 465
(Colo. App. 1990). Application of these mootness principles here demonstrates the City’s
challenge to the Board’s approval of the electronic billboard is either not moot or a mootness
exception applies.
A. The City’s Claims are Not Moot:
StreetMediaGroup relies on Zoning Bd. of Adjustment of Garfield Cnty. v. DeVilbiss, 729
P.2d 353 (Colo. 1986), to argue the construction and operation of the electronic billboard renders
the City’s challenge to the Board’s action moot. [See Motion, at 4-5]. However, DeVilbiss has
been distinguished by subsequent decisions and is distinguishable here and does not stand for the
broad proposition advanced by StreetMediaGroup.
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Initially, the unique and specific factual context of DeVilbiss is evident from the Colorado
Supreme Court’s decision. At the outset of its decision, the Colorado Supreme Court framed the
issue based on the following pertinent factual recitation:
In April 1980 the Snowmass Coal Company applied to the Board of County
Commissioners of Garfield County for a special use permit to enable it to construct
a coal-loading facility fifty-five feet in height in an area in which zoning restrictions
limited all structures to twenty-five feet in height. J.E. DeVilbiss, a Garfield
County landowner within the same zoning district as the loading facility, appeared
at the hearing to oppose the application. The Board of County Commissioners
granted the special use permit contingent upon approval of a height variance by the
Board of Adjustment of Garfield County. On May 29, 1980, the Board of
Adjustment held a public hearing on Snowmass Coal Company’s application for
height variance and granted the variance . . .
On June 27, 1980, DeVilbiss filed a complaint in the district court seeking
relief under C.R.C.P. 106(a)(4). He challenged the action of the Zoning Board of
Adjustment as arbitrary, capricious, and in excess of its jurisdiction. . . . DeVilbiss
did not seek a temporary restraining order or a preliminary injunction under
C.R.C.P. 65, nor did he request a stay under C.R.C.P. 106(a)(4) of the Board of
Adjustment’s height variance and the issuance of building permits by the building
official.
In July and September of 1980, shortly after the action was filed in the
district court, the Snowmass Coal Company received the requisite permits for the
construction of the facility from the Garfield County Building Official, the
Colorado Mined Land Reclamation Board, and the Colorado Air Pollution Control
Board. Snowmass Coal Company proceeded with the construction of the facility,
completing the facility and placing it in operation by October 1, 1981, after an
expenditure of more than $7.7 million.
Id. at 354-55. Notably, DeVilbiss was decided by the Colorado Supreme Court under a prior
version of C.R.C.P. 106(a)(4) which differed in the ability of a litigant to seek and obtain a stay
against a government defendant without the need to post a bond under C.R.C.P. 65. The Colorado
Supreme Court explained the difference between the prior version of C.R.C.P. 106(a)(4) and the
current version as follows:
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Moreover, under our prior case law interpreting the former version of
C.R.C.P. 106(a)(4) applicable to this case, a party filing a C.R.C.P. 106(a)(4) claim
was able to avoid the requirement of posting security by requesting a stay order
concurrently with the filing of the action. PII of Colorado v. District Court, 197
Colo. 239, 591 P.2d 1316 (1979). When such a request was made, the district court
was empowered to stay the governmental action being challenged without regard
to the security requirements of C.R.C.P. 65 [FN7]. Although such a stay order
could not have been directed to the nongovernmental defendants joined in the
C.R.C.P. 106(a)(4) action, a stay order directed to the governmental parties often
would achieve the same practical effect as a preliminary injunction directed to all
parties. See PII, 197 Colo. at 241, 591 P.2d at 1318.
Id. at 358.1 Finally, the Court in DeVilbiss explained the narrow nature of its holding at the
conclusion of the opinion as follows:
We limit our holding to the particular facts of this case. When, as here, the
defendant has applied for and received a variance and the necessary governmental
permits for the construction of a coal-loading facility and then has proceeded at
considerable expense to itself to complete the authorized facility during the
pendency of the litigation seeking to permanently enjoin the construction of the
facility, when the plaintiff has challenged the legality of the variance and has sought
a permanent injunction prohibiting the construction of the facility but has failed to
seek any form of temporary or preliminary injunctive relief to prohibit the
commencement of construction and to preserve the status quo during the pendency
of litigation, and when the substantial interest of the defendant would be
detrimentally affected by judicial relief in the form of a permanent injunction
requiring the removal or radical alteration of the completed project, a trial court
may properly conclude that the permanent injunctive relief sought by the plaintiff
is so inappropriate under the circumstances of this case as to render the plaintiffs’
equitable claim moot. . . .
1 In footnote 7 noted above, the Court explained: “We note in passing that although the
version of C.R.C.P. 106(a)(4) in existence when this case was before the district court and the
court of appeals did not require the posting of security in connection with a request for a stay order
directed to the government officials joined as defendants in a C.R.C.P. 106 claim, see PII of
Colorado v. District Court, 197 Colo. 239, 591 P.2d 1316 (1979), C.R.C.P. 106(a)(4) has since
been substantially amended. The present version, which became effective on January 1, 1986,
now provides in subsection (a)(4)(IV) that the decision of the governmental body may be stayed
‘pursuant to Rule 65 of the Colorado Rules of Civil Procedure.’” DeVilbiss, 729 P.2d at 358 n. 7.
The current version of Rule 106 retains this requirement. See C.R.C.P. 106(a)(4)(V) (“The
proceedings before or decision of the body or officer may be stayed, pursuant to Rule 65 of the
Colorado Rules of Civil Procedure.”).
6
Id. at 360.
Not surprisingly, given the fact-specific and narrow holding in DeVilbiss, courts regularly
distinguish DeVilbiss. See, e.g., Save Cheyenne v. City of Colo. Springs, 425 P.3d 1174, 1177
(Colo. App. 2018) (distinguishing DeVilbiss based on dissimilar facts of the case and in particular
lack of impact requiring “destruction of a fifty-five-foot tall, $7.7 million coal loading facility that
already employed 250 people.”); Sinclair Transp. Co. v. Sandberg, 350 P.3d 924, 927-28 (Colo.
App. 2014) (distinguishing DeVilbiss and rejecting argument a challenge to a land use decision
became moot based on the failure to seek temporary injunction allowing the use of the new pipeline
and the removal of the original one noting a meaningful remedy may still be available depending
on outcome of the appeal); Wells v. Lodge Properties, Inc., 976 P.2d 321, 325 (Colo. App. 1998)
(distinguishing DeVilbiss based on the construction not being complete, the building permit being
issued after the filing of the action, and the plaintiff’s unsuccessful attempt to obtain a temporary
restraining order and preliminary injunction before the District Court); Russell v. City of Central,
892 P.2d 432, 436 (Colo. App. 1995) (distinguishing DeVilbiss based on the declaratory relief
sought in the complaint); Northfork Citizens for Responsible Development v. Board of Cnty.
Comm’rs of Park County, 228 P.3d 838, 847 (Wyo. 2010) (distinguishing DeVilbiss and noting
“Expenditures made with knowledge of a court challenge are not expenditures made in good faith
reliance upon a variance or a permit. We continue to hold that, in Wyoming, completion of a
project under a variance or permit during the pendency of an appeal does not render the appellate
issues moot.”); Bowman v. York, 482 N.W.2d 537, 546 (Neb. 1992) (rejecting DeVilbiss under
Nebraska law and concluding the failure to seek injunctive relief to stop construction was not a
waiver of the right to continue to challenge the land use decision noting: “They very opposite is
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true; they filed their appeal and promptly gave York Cold Storage notice that they had done so.
York Cold Storage simply made a business decision to take the risk of construction, knowing that
the grant of the variance was being challenged and might be reversed.”). Tellingly,
StreetMediaGroup cites no decision following DeVilbiss in its Motion. [See Motion, at 1-6].
Additionally, the City has not located any other decision arising in the C.R.C.P. 106(a)(4) land use
approval context following DeVilbiss.
Similarly, DeVilbiss is distinguishable here for several important reasons. First, the cost
of construction of the electronic billboard at issue here pales in comparison to the $7.7 million at
issue in DeVilbiss. Second, StreetMediaGroup received its building permit after the City filed this
litigation meaning StreetMediaGroup had notice of the lawsuit before it engaged in all its
expenditures.2 Third, the City challenges the Board’s interpretation of the relevant provisions of
the County’s Land Use Code seeking a declaration from this Court the interpretation and its
application to the electronic billboard were erroneous and therefore exceeded the Board’s
jurisdiction and constituted an abuse of discretion by the Board. [See Complaint for Review
Pursuant to C.R.C.P. 106(a)(4), at 16]. Fourth, the Board has not argued the City’s C.R.C.P.
106(a)(4) claim is moot. [See Motion, at 1]. Fifth, StreetMediaGroup has not presented any
evidence to this Court about the cost associated with removing the electronic billboard or
attempted to compare it to the $7.7 Million at issue in DeVilbiss. Sixth, as further argued below,
adopting StreetMediaGroup’s argument would represent a sea change in the law of C.R.C.P.
2 The City filed its Complaint on August 25, 2020. [See Complaint for Review Pursuant
to C.R.C.P. 106(a)(4)]. The Larimer County Sign Permit was issued on October 15, 2020, and the
electronic billboard was installed on October 28, 2020. [See Declaration of Gary Young and
Exhibits 1 and 2 to Defendant StreetMediaGroup, LLC’s Response to Defendant Board of County
Commissioners’ Motion to Dismiss Crossclaim, at ¶ 5 and Exhibit 1].
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106(a)(4) and inappropriately would require all C.R.C.P. 106(a)(4) litigants to seek injunctive
relief pursuant to C.R.C.P. 65 in connection with all such claims. Nothing in DeVilbiss or any
subsequent decision supports such a result.
Moreover, DeVilbiss does not stand for the broad proposition advanced by
StreetMediaGroup. At bottom, StreetMediaGroup’s argument would require all litigants pursuing
claims under C.R.C.P. 106(a)(4) to also seek a preliminary injunction pursuant to C.R.C.P. 65 to
prevent a private party from mooting the C.R.C.P. 106(a)(4) during its pendency by taking action
pursuant to the approved zoning decision being challenged. Neither the plain language of C.R.C.P.
106(a)(4) nor logic supports any such result. Initially, the applicable provision of the Rule provides
as follows: “The proceedings before or decision of the body or officer may be stayed, pursuant to
Rule 65 of the Colorado Rules of Civil Procedure.” C.R.C.P. 106(a)(4)(V) (emphasis added). The
use of the permissive language “may” in this Rule means the Colorado Supreme Court in adopting
it did not contemplate it was required for a litigant like the City to file a Rule 65 motion for
preliminary injunction in all Rule 106(a)(4) actions. See, e.g., Rocky Mt. Retail Mgmt., LLC v.
City of Northglenn, 393 P.3d 533, 540 (Colo. 2017) (describing use of the word “may” as
permissive rather than mandatory); A.S. v. People, 312 P.3d 168, 174 (Colo. 2013) (same).
Further, StreetMediaGroup’s position ignores the practical impact of the rule it advances,
the nature of review under C.R.C.P. 106(a)(4), and the specific issues raised by the City in this
matter. Requiring litigants to seek and obtain a preliminary injunction pursuant to C.R.C.P. 65 in
all C.R.C.P. 106(a)(4) does not make sense based on the structure of both rules and the nature of
review under Rule 106. To obtain a preliminary injunction, a litigant is required to establish,
among other factors, a reasonable probability of success on the merits. Rathke v. MacFarlane,
9
648 P.2d 648 (Colo. 1982); Board of Commissioners v. Fixed Based Operators, Inc., 939 P.2d
464, 467 (Colo. App. 1997). To do so at the outset of a Rule 106 action would require a litigant
to meet this requirement without the certified record and to essentially prove in a preliminary
proceeding the quasi-judicial governmental body abused its discretion or exceeded its jurisdiction
on limited or incomplete facts. Moreover, because a C.R.C.P. 106(a)(4) action is limited to a
review of the certified record before the quasi-judicial body, it would be at least incongruous if not
prohibited for the litigant to make its Rule 65 showing with evidence extrinsic to the certified
record. Holding a preliminary injunction hearing, presenting evidence, and taking testimony
outside the four corners of the certified record would be inconsistent with the rules governing Rule
106(a)(4) actions. Then, if the injunction is denied, the challenged project approved by the lower
tribunal can be built to moot the Rule 106(a)(4) challenge thereby swallowing the remedy Rule
106(a)(4) provides.
Additionally, as presented in detail in the Plaintiff’s Opening Brief, the City has challenged
the Board’s interpretation and application of the three criteria found in the County’s Land Use
Code (“LUC”) at LUC Section 22.2.5. The City has contested the Board’s interpretation and
application of these criteria respecting the approval of the billboard as an off-premises sign, the
approval of the oversize billboard, the approval of the more limited setback, and the approval of
the shorter 6 second hold time. [See Plaintiff’s Opening Brief]. Based on the City’s presentation
of the issues, this Court will be required to address the Board’s Findings and Conclusions
respecting all three criteria on each of the issues for which the Board approved StreetMediaGroup’s
request to depart from the requirements of the LUC. This Court could readily, for example, reject
the Board’s approval of a 6 second hold time instead of the 60 seconds provided in the LUC and
10
reverse the Board on this basis which would require StreetMediaGroup to reprogram but not
necessarily remove the sign. Similarly, this Court could reject the Board’s approval of the shorter
setback or the oversize billboard requiring StreetMediaGroup to modify and relocate the billboard
rather than remove it completely. While the City steadfastly maintains the Board’s Findings and
Approval in its entirety are fundamentally flawed and ultimately no aspect of the approval of
StreetMediaGroup’s appeal should survive this Court’s review, this Court does not have to reach
this result. These types of more limited results from this Court amply demonstrate how the City’s
action is simply not moot based on StreetMediaGroup’s construction and operations of the
electronic billboard. See Russell, 892 P.2d at 436 (construction of rehearsal hall facility did not
moot C.R.C.P. 106(a)(4) challenge to city council’s approval of a special use review for the facility
if court’s judgment could have any practical legal effect).
The Court of Appeals addressed an analogous issue in Stor-N-Lock Partners #15 v. City
of Thornton, 2018 COA 65 (Colo. App. 2018). There, the Court of Appeals rejected the rule
proposed by the developer that a bond or other security should be required whenever a C.R.C.P.
106(a)(4) action challenges a land use approval. In rejecting this categorical rule, the Court of
Appeals reasoned, in pertinent part, as follows:
Whether Rule 106(a)(4) may be construed to require the plaintiff to post a
bond, in conjunction with C.R.C.P. 65, in every land use case is a question of law
that we review de novo. Garcia v. Schneider Energy Servs., Inc., 287 P.3d 112,
2012 CO 62, ¶ 7. We interpret rules of procedure in the same manner as a statute,
giving words their commonly understood and accepted meanings. Id.
Rule 106(a)(4) allows a party to seek review of the decision of a
governmental body. Under subsection (a)(4)(V), the “proceedings before or
decision of the body or officer may be stayed, pursuant to Rule 65 of the Colorado
Rules of Civil Procedure.” C.R.C.P. 65 in turn, governs the issuance of temporary
restraining orders and preliminary injunctions. Thus, in the context of a Rule 106
proceeding, a plaintiff may seek a temporary restraining order or preliminary
11
injunction under Rule 65 to “stay . . . the effect of an adverse decision” by the
governmental body. City of Colorado Springs v. 2354, Inc., 896 P.2d 272, 274
(Colo. 1995).
. . . .
Under the plain language of Rule 65(c), the bond is intended to provide a
remedy for a party “who is found to have been wrongfully enjoined or restrained”
by an injunction or restraining order. See Kaiser v. Mkt. Square Disc. Liquors,
Inc., 992 P.2d 636, 643 (Colo. App. 1999).
Here, as Resolute concedes, its use of the property was not “enjoined or
restrained” under Rule 65 because Stor-N-Lock did not seek, and the district court
did not enter, a preliminary injunction or a temporary restraining order. Thus, there
could be no occasion to determine whether it had been “wrongfully” enjoined or
restrained from using the property, and no need for a remedy in the event of such a
wrongful restraint.
That would seem to resolve the question. But Resolute insists that Stor-N-
Lock’s mere initiation of an action under Rule 106 increased the financial risk of
proceeding with Resolute’s development plan to such a degree that it was
“effectively enjoined” by the litigation itself.
The majority of its briefing describes, persuasively, how the litigation has
increased the financial risk associated with developing the property. Resolute
reminds us that, under Colorado law, if the defendant proceeds in accordance with
its permit, and the governmental entity’s decision to issue the permit is
subsequently reversed, the defendant may be precluded from further development
or even required to remove completed improvements. See Russell v. City of
Central, 892 P.2d 432, 436 (Colo. App. 1995) (holding that Rule 106 action to
invalidate permit was not moot even though defendant had completed construction
under a then-valid permit). But see Zoning Bd. of Adjustment v. DeVilbiss, 729
P.2d 353 (Colo. 1986) (deciding that Rule 106 action was moot were plaintiff failed
to seek injunctive relief and the defendant had completed construction of its
facility).
We are not unsympathetic to Resolute’s predicament, but we must reject its
attempt to equate an order that renders certain conduct legally impermissible with
a lawful review process that renders legally permissible conduct more expensive.
It is undisputed that Resolute may proceed with development of the property. If it
chooses not to, based on its own subjective cost-benefit analysis, it may not seek
damages (in the form of a forfeited bond) as a consequence of that choice.
12
Moreover, the bond requirement “is an exception to the norm in American
litigation that the parties bear their own costs and expenses.” Mead Johnson &
Co. v. Abbott Labs., 209 F.3d 1032, 1033 (7th Cir. 2000). If we read the bond
requirement into every land use case filed under Rule 106(a)(4), even when no
injunction has been requested, the exception would, if not swallow, at least infringe,
to an unacceptable degree, on the rule.
Id. at ¶¶ 42-50 (emphasis in original). This decision teaches multiple applicable lessons. First,
the City was not required to seek a preliminary injunction along with its Rule 106(a)(4) challenge.
Second, StreetMediaGroup’s choice to proceed with its construction pursuant to the Board’s
approval subject to this litigation was its own cost-benefit analysis and it, not the City, must live
with the impact of its decision. Third, if the City prevails, this Court possesses the authority to
order StreetMediaGroup to remove the electronic billboard.
Indeed, this Court’s February 26, 2021, Order Granting Motion to Dismiss Crossclaims
foreshadowed this Court’s understanding of these issues. Initially, in determining
StreetMediaGroup lacked standing to pursue its crossclaims challenging the constitutionality of
the Larimer County Land Use Code related to sign appeals, this Court concluded:
The problem for StreetMedia is that its sign was approved. In other words,
StreetMedia has not suffered any injury, concrete or imminent, by having its sign
approved by the procedure. No matter what the Court decides on StreetMedia’s
claims, it would have no effect on the sign that is at issue in this case. If StreetMedia
is indeed correct that the whole sign approval process is constitutionally defective,
perhaps the proper relief would be to grant the City’s appeal and take down the
sign. Arguably, if the procedure is defective than its approvals would be defective
as well. However, it is clear that StreetMedia does not actually want that remedy.
[See Order Granting Motion to Dismiss Crossclaims, at 2]. Subsequently, in distinguishing
SreetMediaGroup’s standing to participate in defending against the City’s Rule 106(a)(4) action,
this Court noted: “To be clear, StreetMedia still has standing to defend the C.R.C.P. 106 appeal
as it would be injured if the appeal overturned the sign approval.” [See Order Granting Motion to
13
Dismiss Crossclaims, at 3]. In combination, these two statements by this Court reflect the
understanding StreetMediaGroup can defend against the City’s Rule 106(a)(4) appeal because if
the City prevails its injury would be the removal of the electronic billboard at issue.
B. The Exceptions to the Mootness Doctrine Apply Here:
Alternatively, if this Court concludes the City’s C.R.C.P. 106(a)(4) action is mooted by
StreetMediaGroup’s construction of the electronic billboard at issue, the City requests this Court
still consider the merits of the City’s C.R.C.P. 106(a)(4) challenge under the two exceptions to the
mootness doctrine. Both mootness exceptions have applicability here.
Initially, this matter represents an issue capable of repetition yet evading review. No
question exists Larimer County retains its existing Land Use Code and unless this matter is
reviewed by this Court, nothing will prevent future Boards of County Commissioners of Larimer
County from incorrectly interpreting and applying the Land Use Code’s sign appeal provisions as
they did in this case. StreetMediaGroup itself has expressed its intent to submit other applications
to Larimer County for similar electronic billboards. Unless one of those applications is adjacent
to land owned by the City or within the area where the intergovernmental agreement between the
City and Larimer County applies, the City will lack the ability to participate in the proceedings
before the Board or challenge an adverse outcome under C.R.C.P. 106(a)(4). Under
StreetMediaGroup’s position, any other challenger would be required to seek a preliminary
injunction under C.R.C.P. 65 and post the requisite security just to challenge a subsequent approval
of an electronic billboard by the Board. StreetMediaGroup’s argument for economic estoppel in
this case and future cases amply demonstrates the possibility of the issues raised in the City’s
Complaint repeating themselves yet evading review by this Court.
14
Similarly, the public importance of this matter is also evident. A significant public interest
exists in the courts ensuring a Board of County Commissioners appropriately follows applicable
law. Further, the nature of this dispute as between two local governments also demonstrates its
great public importance. As a result of the applicability of the two mootness exceptions, this Court
may review this matter even if it concludes StreetMediaGroup’s construction of the electronic
billboard somehow moots the City’s C.R.C.P. 106(a)(4) challenge.
CONCLUSION
In conclusion, for all the foregoing reasons, Plaintiff City of Fort Collins respectfully
requests this Court deny Defendant StreetMediaGroup, Inc.’s Motion to Dismiss in its entirety,
and for all other and further relief as this Court deems just and appropriate.
15
Dated this 17th day of March, 2021.
Respectfully submitted,
/s/ Andrew D. Ringel________________
Andrew D. Ringel #24762
Hall & Evans, L.L.C.
1001 17th Street, Suite 300
Denver, CO 80202
303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
and
John R. Duval #10185
Deputy City Attorney
Claire Havelda #36831
Assistant City Attorney
City Attorney’s Office
300 Laporte Avenue
P.O. Box 500
Fort Collins, Colorado 80522
970-221-6652
Fax: 970-221-6327
jduval@fcgov.com
chavelda@fcgov.com
ATTORNEYS FOR PLAINTIFF
THE CITY OF FORT COLLINS
COLORADO
16
CERTIFICATE OF SERVICE
I hereby certify that on this 17th day of March, 2021, a true and correct copy of the foregoing
was filed with the Court and served via Colorado Courts E-Filing System to the following email
addresses:
Todd G. Messenger, Esq.
tmessenger@fwlaw.com
Amanda C. Jokerst, Esq.
ajokerst@fwlaw.com
Jeannine S. Haag, Esq.
haagjs@co.larimer.co.us
William G. Ressue, Esq.
wressue@larimer.org
Frank N. Haug, Esq.
haugfn@co.larimer.co.us
/s/ Nicole Marion .
Nicole Marion
of HALL & EVANS, L.L.C.,