HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 023 - Order Denying Street Media Group's Motion To DismissDistrict Court, Larimer County, State of Colorado
Larimer County Justice Center
201 LaPorte 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 COMMISSIONERS OF
LARIMER COUNTY, COLORADO AND
STREETMEDIAGROUP, LLC.
Case No: 2020CV30580
Courtroom: 4B
ORDER DENYING DEFENDANT STREETMEDIAGROUP, LLC’S MOTION TO
DISMISS PLAINTIFF’S COMPLAINT
THIS MATTER comes before the Court on Defendant StreetMediaGroup, LLC’s
Motion to Dismiss Plaintiff’s Complaint (“Motion”) filed September 22, 2020. Plaintiff
City of Fort Collins responded on October 23, 2020, and StreetMediaGroup replied on
October 30, 2020. Defendant Board of Commissioners of Larimer County takes no
position on this motion. Having reviewed the filings, the Court’s file, and applicable law;
and being otherwise fully informed in the premises, the Court hereby DENIES
Defendant’s Motion.
I. Background
Plaintiff’s complaint was filed August 25, 2020 and seeks review of a decision by
the Board of Commissioners of Larimer County to allow a certain billboard on State-
owned property adjacent to Fort Collins city limits. The complaint alleges that the Board
of Commissioners “exceeded its jurisdiction and abused its discretion in approving the
DATE FILED: November 29, 2020 4:04 PM
CASE NUMBER: 2020CV30580
proposed billboard in multiple ways” including in its interpretation and application of
the County’s Land Use Code and its alleged failure to support its factual findings with
competent evidence. Defendant StreetMediaGroup seeks to dismiss Plaintiff’s complaint
on the grounds that Plaintiff lacks standing, that the City’s complaint is untimely, and
that Plaintiff’s complaint seeks content-based censorship and the extension of an
unconstitutional prior restraint.
II. Relevant Law
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. Unlike some motions under 12(b)(1), in a motion asserting a lack of
standing the court must “accept as true all material allegations of fact in the complaint.”
Reeves-Toney v. School Dist. No. 1 in City and County of Denver, 442 P.3d 81 (Colo. 2019).
StreetMediaGroup’s Motion largely argues that Plaintiff, the City of Fort Collins, lacks
standing to bring this suit. “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 under the Wrongful Death Act) (quoting
Sandstrom v. Solen, 370 P.2d 669, 672 (Colo. App. 2016) (standing for a suit to quiet title).
“Parties in Colorado ‘benefit from a relatively broad definition of standing.’” Maralex
Resources, Inc. v. Chamberlain, 320 P.3d 399 (Colo. App. 2014) (quoting Ainscough v. Owens,
90 P.3d 851, 855 (Colo. 2004). Standing in Colorado requires an injury-in-fact to a legally
protected interest. Ainscough, 90 P.3d at 856. “Although necessary, the test in Colorado
has traditionally been relatively easy to satisfy.” 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. (citation and internal
quotation marks omitted). While standing may be based on a tangible injury, it can also
be based on intangible injuries such as harm to aesthetic interests or the deprivation of
civil liberties. Id.; see also, e.g., Sierra Club v. Morton, 405 U.S. 727 (1972).
While StreetMediaGroup’s motion also alleges First Amendment violations, the
Court agrees with Defendant that these concerns are more properly addressed after
briefing on the merits. See Nuttall v. Leffingwell, 563 P.2d 356, 358 (Colo. 1977) (addressing
constitutional arguments as a merits question on C.R.C.P. 106 review). StreetMediaGroup
does not provide, and the Court has not found, authority justifying dismissal on these
facts based on these Constitutional arguments.
III. Application
StreetMediaGroup argues that Fort Collins cannot, as a matter of law, challenge
the County’s ”discrete land use decision” and that Plaintiff “can show no injury to any
legally protected interest.” Motion at 11. StreetMediaGroup further alleges that the
complaint in this matter is untimely, depriving the Court of jurisdiction. Taking Plaintiff’s
material allegations as true, the Court disagrees.
a. Fort Collins, as a home-rule city, is not legally barred from challenging
the County’s decision to allow the billboard
StreetMediaGroup argues that Fort Collins, as a “subordinate political
subdivision,” lacks standing to challenge decisions made by superior political
subdivisions absent a constitutional or statutory provision creating such a right, and that
Fort Collins has failed to allege any violation of a legally protected interest. Both
StreetMediaGroup and Fort Collins cite Board of County Comm’rs v. Thornton, 629 P.2d 605
(Colo. 1981) and the Court finds Thornton applicable here.
In Thornton the eponymous home-rule city sought to challenge a decision by the
Adams County Board of Commissioners to re-zone an area adjacent to the City of
Thornton in order to allow a “research and development type employment park.”
Thornton, 629 P.2d at 607. In holding that the home-rule city had standing to challenge
the zoning decision, the Colorado Supreme Court stated that “[w]hile planning and
zoning for lands outside the boundaries of a home-rule city may be matters of statewide
concern, the preservation of the value of city property is a local and municipal matter.”
Id. at 609 – 10. The Thornton opinion quotes at length the California Supreme Court’s
opinion in Scott v. Indian Wells:
Certainly it is clear that the development of a parcel on the city's edge will
substantially affect the value and usability of an adjacent parcel on the other
side of the municipal line.
To hold, under these circumstances, that defendant city may zone the land
within its border without any concern for adjacent landowners would
indeed ‘make a fetish out of invisible municipal boundary lines and a
mockery of the principles of zoning.’ ‘(C)ommon sense and wise public
policy ... require an opportunity for property owners to be heard before
ordinances which substantially affect their property rights are adopted ....’
(Citation omitted.) Indeed, the due process clause of the Fourteenth
Amendment requires ‘at a minimum ... that deprivation of life, liberty or
property by adjudication be preceded by notice and opportunity for
hearing.
492 P.2d 1137, 1141 (as quoted in Thornton).
While the City of Thornton alleged diminution in property value due to the re-
zoning, Fort Collins’s complaint alleges that “the [P]roperty [where the sign is planned]
is [] immediately adjacent to property owned by [Fort Collins]” and that light from the
proposed billboard would harm wildlife in the nearby Arapahoe Bend Natural Area.
Complaint ¶ 38, Letter from Darren Atteberry attached as Ex. D to Complaint at pp. 10 –
11. These injuries, while not “tangible” like the economic loss in Thornton, nonetheless
satisfy the requirement of an “injury-in-fact.” Sierra Club. Because there is no per-se bar
to a home-rule city challenging zoning decisions of a county that affect adjacent city
property, and because Fort Collins has alleged an injury -in-fact to a legally protected
interest, Fort Collins has standing here.
b. Fort Collins’s Rule 106 Complaint was Timely Filed
C.R.C.P. 106(b) provides that a complaint for judicial review of a quasi-judicial
decision made by an administrative body must be “filed in the district court not later than
28 days after the final decision of the body or officer”(unless a statute provides a different
time frame). The complaint in this matter was filed August 25, 2020. StreetMediaGroup
argues that the “final decision of the body,” in this case the Board of Commissioners of
Larimer County, was made on June 1, 2020, when the appeal hearing (the hearing at
which the Board of Commissioners approved the billboard) was held. Motion at 13.
Plaintiff responds that the “final decision” was not made until July 28, when the Board of
Commissioners entered its written Findings and Resolution. Response at 11.
The parties cite a trio of Colorado cases for their arguments: 3 Bar J Homeowners
Association. v. McMurray, 967 P.2d 633 (Colo. App. 1998), Wilson v. Board of County
Commissioners, 992 P.2d 668 (Colo. App. 1999), and 1405 Hotel, Inc. v. Colorado Economic
Development Commission, 370 P.3d 309 (Colo. App. 2015).
The rule in Colorado, as set forth by these cases, is that a “final decision” for
purposes of Rule 106(a)(4) is the “point of administrative finality” when “the action
complained of is complete, leaving nothing further for the agency to decide.” 3 Bar J, 967
P.2d 633 (citations and internal quotation marks omitted). A final decision is one which
“ends the particular action in which is entered, leaving nothing further to be done to
completely determine the rights of the parties.” 1405 Hotel, 370 P.3d at 313. Finality
“depends upon the scope and nature of the proceeding and rights at issue.” Id. With this
for guidance, the Court must look to the facts and holdings of 3 Bar J, Wilson, and 1405
Hotel and attempt to apply the rule as established by the appellate courts.
3 Bar J concerned the “approval of the final two plats of two proposed
subdivisions.” 3 Bar J, 967 P.2d at 634. The appellate court held that the “final decision in
the subdivision approval process [took] place when the Board of County Commissioners
vote[d] at a public meeting to approve the subdivisions at issue, even though such
approval may be subject to certain conditions.” Id. at 635. This construction was required
as it would give objectors a clear date for knowing when finality had occurred and when
they must file to seek review, and to avoid the possibility that “developers would be
required to expend substantial sums to comply with a county’s conditions before learning
whether the subdivision approval would be set aside on judicial review.” Id.
Wilson concerns an application for an accessory dwelling permit which was denied
by oral resolution at a hearing on April 30, 2017. A signed resolution was mailed to
Plaintiffs the next week, however an error was then discovered and a revised resolution
was sent out on May 16, 1997. The complaint was filed on June 16, 1997.1 In distinguishing
3 Bar J, and holding the complaint timely filed, the appellate court reasoned that “[t]he
Board’s actions in entering this written resolution and later revising it demonstrate that
at the time of the Board’s vote at the hearing its action was not complete[.]” Wilson, 992
P.2d at 670.
1405 Hotel evaluated whether a complaint filed by eleven hotels against the
Colorado Economic Development Commission and the City of Aurora was timely filed
when administrative finality occurred either 1) when the Economic Development
Commission conditionally approved a project on May 18, 2012 or 2) on August 15, 2013
when the Attorney General denied a petition for reconsideration. The Colorado Court of
Appeals disagreed with both, finding that final agency action occurred in October, 2013
1 The prior version of C.R.C.P. 104(a)(4) allowed plaintiffs 30 days to seek judicial review. Because June
16, 1997 was a Monday, if the date of administrative finality was on or after May 15, 1997, the complaint
was timely filed.
when the Economic Development Commission adopted a resolution memorializing the
terms of the award (to the hotels per the Regional Tourism Act, an act designed to
incentivize projects which would bring tourist money into Colorado).
The court of appeals reached this conclusion because 1) the Economic
Development Commission was required by statute to pass a resolution memorializing
the terms of any award issued under the statute, 2) the May 2012 preliminary approval
contained conditions which Aurora had 120 days to fulfill—and which may not have
occurred. “Such an approval, by its nature, contemplates further agency action to
determine whether the conditions have been satisfied,” and 3) judicial economy supports
delaying administrative finality until the parties know whether all conditions have been
completed. Id., 370 P.3d at 314.
In so holding, the 1405 Hotels court painstakingly avoids overruling 3 Bar J, but in
doing so appears to limit the 3 Bar J holding. “The majority [in 3 Bar J] concluded that the
Board’s decision became final upon the public vote and approval—and not the private
signing and recording—even though the preliminary decision had placed conditions on
the approval. The majority reasoned that finality must be easily discernable and
expressed concern in adopting a position that finality could occur privately. The 3 Bar J
division’s concern that finality could occur privately is not present here because the RTA
requires the [Economic Development Commission] to adopt a final resolution[.]” Id.
The Court finds that the issuance of the written Findings and Resolution was the
“final decision” for purposes of C.R.C.P. 106(a)(4) review. The Court finds that, to the
extent 3 Bar J has continued applicability after Wilson and 1405 Hotels, the present matter
falls outside its scope. In coming to this conclusion the Court relies on the fact that the
Larimer County Board of Commissioners requires final decisions in the sign appeal
process to be “in the form of a written resolution[.]” Larimer County Land Use Code §
12.2.7.C.
c. The Court will not consider the constitutionality of this construction of
administrative finality as it relates to sign permitting at this time
In City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774 (2004) the Supreme Court
found that Colorado’s judicial review process under C.R.C.P. 106(a)(4) provided
sufficient safeguards for constitutionally-protected speech in the context of a Littleton
business selling adult books in an area not zoned for adult businesses. At this stage the
Court does not find reason to dismiss this case based on the risk of delay posed by finding
the date of administrative finality to be the date the Board of Commissioners issues its
written ruling.
SO ORDERED: November 29, 2020
BY THE COURT:
_____________________________
Daniel McDonald
District Court Judge