HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 025 - Street Media Group Answer And Cross ClaimDISTRICT COURT, COUNTY OF LARIMER,
STATE OF COLORADO
Larimer County Justice Center
201 Laporte Avenue, Suite 100
Fort Collins, CO 80521-2762
Telephone: (970) 498-6100
▲ 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, StreetMediaGroup, LLC:
Todd G. Messenger, Reg. No. 38783
Andrew J. Helm, Reg. No. 47548
FAIRFIELD AND WOODS, P.C.
1801 California Street, Suite 2600
Denver, CO 80202
Telephone: (303) 830-2400
Facsimile: (303) 830-1033
E-Mail: tmessenger@fwlaw.com; ahelm@fwlaw.com
Case Number: 2020CV030580
Division: 4B
DEFENDANT STREETMEDIAGROUP, LLC’S ANSWER AND CROSS CLAIM
Defendant StreetMediaGroup, LLC (“StreetMedia”), through its undersigned counsel,
Fairfield and Woods, P.C., hereby answers Plaintiff’s Complaint and states as follows:
1. StreetMedia admits the allegations set forth in paragraph 1 of the Complaint.
2. StreetMedia admits the allegations set forth in paragraph 2 of the Complaint.
3. StreetMedia denies the allegations set forth in paragraph 3 of the Complaint.
4. The allegations set forth in paragraph 4 of the Complaint are a statement of
Plaintiff’s case, to which no response is required or appropriate. To the extent a response is
required, StreetMedia denies the allegations.
5. StreetMedia denies the allegations set forth in paragraph 5 of the Complaint.
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PARTIES
6. StreetMedia is without knowledge sufficient to know the truth of the allegation,
which is not supported in the certified record. As such, StreetMedia denies the allegations set
forth in paragraph 6 of the Complaint.
7. StreetMedia, on information and belief, admits the allegations set forth in
paragraph 7 of the Complaint.
8. StreetMedia does not dispute the status of the Board as the proper party to sue.
9. StreetMedia, on information and belief, admits the allegations set forth in
paragraph 9 of the Complaint.
10. StreetMedia admits the allegations set forth in paragraph 10 of the Complaint.
11. StreetMedia admits the allegations set forth in paragraph 11 of the Complaint.
JURISDICTION AND VENUE
12. StreetMedia denies the allegations set forth in paragraph 12 of the Complaint.
13. StreetMedia admits that this Court has jurisdiction to review quasi-judicial
decisions under C.R.C.P. 106, but denies that the Court has subject matter jurisdiction in this
case, as alleged in paragraph 13 of the Complaint.
14. StreetMedia admits that the City filed its Complaint within twenty-eight days of
the Board’s July 28, 2020 Findings and Resolution, but denies that the City’s Complaint was
timely under C.R.C.P. 106(b), as alleged in paragraph 14 of the Complaint.
15. StreetMedia does not dispute that venue is proper, but only if the Court has
jurisdiction over a timely filed Complaint under C.R.C.P. 106.
GENERAL ALLEGATIONS
16. StreetMedia admits that Fort Collins has attached a copy of the IGA document
referenced in paragraph 16 to its Complaint as Exhibit A. StreetMedia is without knowledge
sufficient to admit the basis for or authenticity of the document. StreetMedia denies that the IGA
document is part of the Certified Record under review. StreetMedia denies that the IGA
document is relevant to or controlling in this action.
17. The allegations set forth in paragraph 17 of the Complaint refer to a document
that speaks for itself. To the extent a response is required and the allegations conflict with the
document referenced, StreetMedia denies the allegations. StreetMedia denies that the IGA
document is part of the Certified Record under review. StreetMedia denies that the IGA
document is relevant to or controlling in this action.
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18. The allegations set forth in paragraph 18 of the Complaint refer to a document
that speaks for itself. To the extent a response is required and the allegations conflict with the
document referenced, StreetMedia denies the allegations. StreetMedia denies that the IGA
document is part of the Certified Record under review. StreetMedia denies that the IGA
document is relevant to or controlling in this action.
19. StreetMedia admits that Fort Collins has attached a copy of the amendment to the
IGA document referenced in paragraph 19 to its Complaint as Exhibit B. StreetMedia is without
knowledge sufficient to admit the basis for or authenticity of the document. StreetMedia denies
that the amendment to the IGA document is part of the Certified Record under review.
StreetMedia denies that the amendment to the IGA document is relevant to or controlling in this
action.
20. There is no paragraph 20.
21. StreetMedia admits, on information and belief, the allegations set forth in
paragraph 21 of the Complaint, but denies the import of the Property’s location to this matter.
22. StreetMedia is without knowledge sufficient to know the truth of the allegation,
which is not supported by competent evidence in the Certified Record. As such, StreetMedia
denies the allegations set forth in paragraph 22 of the Complaint.
23. StreetMedia admits the allegations set forth in paragraph 23 of the Complaint.
24. StreetMedia admits the allegations set forth in paragraph 24 of the Complaint.
25. The allegations set forth in paragraph 25 of the Complaint refer to the Larimer
County Code (“LUC”), which speaks for itself. To the extent a response is required and the
allegations conflict with the LUC provision referenced, StreetMedia denies the allegations.
26. The allegations set forth in paragraph 26 of the Complaint refer to the Larimer
County Code (“LUC”), which speaks for itself. To the extent a response is required and the
allegations conflict with the LUC provision referenced, StreetMedia denies the allegations.
27. StreetMedia admits it filed an Appeal Request Form, as alleged in paragraph 27 of
the Complaint. The Appeal Request Form speaks for itself. StreetMedia denies the allegation in
paragraph 27 that the subject of the Appeal Request Form “is not consistent with LUC § 10 in
several respects.”
28. The allegations set forth in paragraph 28 of the Complaint refer to the Larimer
County Code (“LUC”), which speaks for itself. To the extent a response is required and the
allegations conflict with the LUC provision referenced, StreetMedia denies the allegations.
29. The allegations set forth in paragraph 29 of the Complaint refer to a document
that speaks for itself. To the extent a response is required and the allegations conflict with the
document referenced, StreetMedia denies the allegations.
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30. The allegations set forth in paragraph 30 of the Complaint refer to a document
that speaks for itself. To the extent a response is required and the allegations conflict with the
document referenced, StreetMedia denies the allegations.
31. StreetMedia admits the allegations set forth in paragraph 31 of the Complaint.
32. The allegations set forth in paragraph 32 of the Complaint refer to the Larimer
County Code (“LUC”), which speaks for itself. To the extent a response is required and the
allegations conflict with the LUC provision referenced, StreetMedia denies the allegations.
33. The allegations set forth in paragraph 33 of the Complaint refer to the Larimer
County Code (“LUC”), which speaks for itself. To the extent a response is required and the
allegations conflict with the LUC provision referenced, StreetMedia denies the allegations.
34. The allegations set forth in paragraph 34 of the Complaint refer to the Larimer
County Code (“LUC”), which speaks for itself. To the extent a response is required and the
allegations conflict with the LUC provision referenced, StreetMedia denies the allegations.
35. The allegations set forth in paragraph 35 of the Complaint refer to a document
that speaks for itself. To the extent a response is required and the allegations conflict with the
document referenced, StreetMedia denies the allegations.
36. The allegations set forth in paragraph 36 of the Complaint refer to a document
that speaks for itself. To the extent a response is required and the allegations conflict with the
document referenced, StreetMedia denies the allegations.
37. The allegations set forth in paragraph 37 of the Complaint refer to a document
that speaks for itself. To the extent a response is required and the allegations conflict with the
document referenced, StreetMedia denies the allegations.
38. StreetMedia admits the letter referenced in paragraph 38 of the Complaint is a
part of the Certified Record in this case. The letter speaks for itself, and to the extent a response
is required and the allegations conflict with the letter referenced, StreetMedia denies the
allegations.
39. The allegations set forth in paragraph 39 of the Complaint refer to the Larimer
County Code (“LUC”), which speaks for itself. To the extent a response is required and the
allegations conflict with the LUC provision referenced, StreetMedia denies the allegations.
40. The allegations set forth in paragraph 40 of the Complaint refer to the Larimer
County Code (“LUC”), which speaks for itself. To the extent a response is required and the
allegations conflict with the LUC provision referenced, StreetMedia denies the allegations.
41. StreetMedia admits the allegation in paragraph 41 that County Staff reviewed
StreetMedia’s application. StreetMedia denies that County Staff has the authority to “determine”
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the merits of an application. To the extent any other matter is expressed or implied by this
allegation, StreetMedia denies same.
42. The allegations set forth in paragraph 42 of the Complaint refer to a County Staff
report which speaks for itself. To the extent the allegations in paragraph 42 suggest County Staff
have the authority to act conclusively on an application, and to the extent the allegations conflict
with the staff report quoted, StreetMedia denies the allegations.
43. The allegations set forth in paragraph 43 of the Complaint refer to a County Staff
report which speaks for itself. To the extent the allegations in paragraph 43 suggest County Staff
have the authority to act conclusively on an application, and to the extent the allegations conflict
with the staff report quoted, StreetMedia denies the allegations.
44. The allegations set forth in paragraph 44 of the Complaint refer to a County Staff
report which speaks for itself. To the extent the allegations in paragraph 44 suggest County Staff
have the authority to act conclusively on an application, and to the extent the allegations conflict
with the staff report quoted, StreetMedia denies the allegations.
45. The allegations set forth in paragraph 45 of the Complaint refer to a County Staff
report which speaks for itself. To the extent the allegations in paragraph 45 suggest that County
Staff findings are binding on the Board of County Commissioners, and to the extent the
allegations conflict with the staff report quoted, StreetMedia denies the allegations.
46. StreetMedia is without knowledge sufficient to know the truth of the allegation in
the first clause of paragraph 46 (“Based on its analysis of the LUC and findings”) and therefore
denies the same; StreetMedia admits that “County Staff recommended the Board deny
StreetMediaGroup’s sign appeal.”
47. StreetMedia admits the allegations set forth in paragraph 47 of the Complaint.
48. StreetMedia admits the allegations set forth in paragraph 48 of the Complaint.
49. StreetMedia admits that the Board voted to approve StreetMedia’s proposal at the
June 1, 2020, and did not issue a written decision at that time, as set forth in paragraph 49 of the
Complaint. StreetMedia denies any implication that the Board was required to set forth its
decision in writing before that decision was considered a final quasi-judicial determination.
50. StreetMedia admits that Fort Collins has attached a copy of the letter referenced
in paragraph 50 to its Complaint as Exhibit F. StreetMedia is without knowledge sufficient to
admit the authenticity of the document. StreetMedia denies that the document is part of the
Certified Record under review. StreetMedia denies that the document is relevant to or controlling
in this action.
51. StreetMedia admits the allegations set forth in paragraph 51 of the Complaint.
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52. The allegations set forth in paragraph 52 of the Complaint are a statement of
Plaintiff’s case, to which no response is required or appropriate. To the extent a response is
required, StreetMedia denies the allegations.
FIRST CLAIM FOR RELIEF
(Review Pursuant to C.R.C.P. 106(a)(4))
53. StreetMedia incorporates its responses to the allegations set forth in paragraphs 1
through 52 of the Complaint as if fully set forth herein.
54. StreetMedia denies the allegations set forth in paragraph 54 of the Complaint.
55. StreetMedia denies the allegations set forth in paragraph 55 of the Complaint.
56. StreetMedia denies the allegations set forth in paragraph 56 of the Complaint.
57. StreetMedia denies the allegations set forth in paragraph 57 of the Complaint.
58. StreetMedia denies the allegations set forth in paragraph 58 of the Complaint.
59. StreetMedia denies the allegations set forth in paragraph 59 of the Complaint.
60. StreetMedia denies the allegations set forth in paragraph 60 of the Complaint.
61. StreetMedia denies the allegations set forth in paragraph 61 of the Complaint.
62. StreetMedia denies the allegations set forth in paragraph 62 of the Complaint.
63. StreetMedia denies the allegations set forth in paragraph 63 of the Complaint.
64. StreetMedia denies the allegations set forth in paragraph 64 of the Complaint.
65. StreetMedia denies the allegations set forth in paragraph 65 of the Complaint.
66. StreetMedia denies the allegations set forth in paragraph 66 of the Complaint.
67. StreetMedia denies the allegations set forth in paragraph 67 of the Complaint.
68. StreetMedia denies the allegations set forth in paragraph 68 of the Complaint.
69. The allegations set forth in paragraph 69 of the Complaint are legal conclusions,
to which no response is required or appropriate. To the extent a response is required, StreetMedia
denies the allegations.
70. StreetMedia denies the allegations set forth in paragraph 70 of the Complaint.
71. StreetMedia denies the allegations set forth in paragraph 71 of the Complaint.
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72. StreetMedia denies the allegations set forth in paragraph 72 of the Complaint.
73. StreetMedia denies the allegations set forth in paragraph 73 of the Complaint.
74. StreetMedia denies the allegations set forth in paragraph 74 of the Complaint.
75. StreetMedia denies the allegations set forth in paragraph 75 of the Complaint.
76. StreetMedia denies the allegations set forth in paragraph 76 of the Complaint.
77. The allegations in paragraph 77 of the Complaint are non-sequitur, as Plaintiff has
alleged that LUC § 10 prohibits “off-premises billboards.” StreetMedia denies the allegations set
forth in paragraph 77 of the Complaint.
78. StreetMedia denies the allegations set forth in paragraph 78 of the Complaint.
79. StreetMedia denies the allegations set forth in paragraph 79 of the Complaint.
80. StreetMedia denies the allegations set forth in paragraph 80 of the Complaint.
GENERAL DENIAL
81. StreetMedia denies each and every allegation set forth in the Complaint not
specifically admitted to herein.
AFFIRMATIVE DEFENSES
1. Plaintiff’s Complaint fails to state a claim upon which relief can be granted.
2. This Court lacks subject matter jurisdiction over Plaintiff’s Complaint, because
the Complaint is untimely under C.R.C.P. 106.
3. Plaintiff lacks standing to bring its Complaint.
4. Plaintiff’s claims are moot.
5. Plaintiff’s claim are barred by the doctrines of waiver, estoppel and/or laches.
WHEREFORE, StreetMediaGroup LLC respectfully requests that this Court affirm the
decision of the Board of County Commissioners of Larimer County, award StreetMediaGroup
LLC its attorneys’ fees and costs as may be permitted by law, and award StreetMediaGroup any
other relief this Court deems just and proper.
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CROSS CLAIMS
Defendant StreetMediaGroup, LLC, by and through its attorneys, Fairfield and Woods,
P.C., asserts cross claims against Defendant Board of County Commissioners of Larimer County,
Colorado (“Board”) as follows:
1. StreetMedia incorporates each factual allegation in the Complaint specifically
admitted to in its Answer, as if fully set forth herein.
JURISDICTION AND VENUE
2. This Court has jurisdiction over StreetMedia’s Cross Claims pursuant to C.R.C.P.
13, as the allegations set forth herein arise out of the transaction or occurrence that is the subject
matter of the original action, and relates to property that is the subject matter of the original
action.
3. Venue is proper pursuant to C.R.C.P. 98.
GENERAL ALLEGATIONS
4. On March 24, 2020, StreetMedia filed an Appeal Request Form in order to
commence a process (“Appeal”) through which, after a public hearing of the Board of County
Commissioners, StreetMedia could obtain approval to apply for a building permit for an outdoor
advertising device (“Sign”) that did not strictly comply with several of the standards set out in
LUC § 10.
5. As part of its Appeal, in order to reduce overall sign clutter in the County and
advance the County’s stated objectives in the LUC, StreetMedia proposed to deconstruct and
remove five advertising devices within the County.
6. The Board considered the Appeal at a properly-noticed public hearing on June 1,
2020.
7. At that hearing, the Board granted StreetMedia’s Appeal.
8. On July 28, 2020, fifty-seven days after the Board granted StreetMedia’s appeal,
the Board memorialized that approval in a written document entitled, “Findings and Resolution.”
9. The City of Fort Collins filed its action seeking review of the Board’s decision on
August 25, 2020, eighty-five days after the Board granted StreetMedia’s Appeal.
10. The City did not seek injunctive relief as part of its Complaint for review.
11. After the Board’s June 1, 2020 approval, StreetMedia and the Board took action
related to the fulfillment of StreetMedia’s Appeal and the Board’s approval.
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12. These actions include, but are not limited to, the deconstruction of the five
advertising devices within the County, the issuance of all necessary permits for the Sign
(including building and electrical permits), the construction of the Sign, all required inspections
for the Sign, closure of the building and electrical permits, and finally, the display of content on
the Sign.
13. StreetMedia’s rights in its Sign are constitutionally-protected under the First
Amendment, the Fifth Amendment, and the Fourteenth Amendments to the U.S. Constitution,
and Colorado Constitution, Article II, §§ 3, 10, and 25.
14. Larimer County Code (“LUC”) § 10.0 sets out the general requirements for signs
within the County.
15. LUC § 10.0 includes requirements for limiting the area of sign faces, sign height,
and sign setbacks.
16. LUC § 10.5 prohibits certain types of signs in any zoning district within the
County, including electronic or changeable message signs that change more frequently than once
every minute, as well as billboards and “off-premise signs.”
17. LUC § 10.15 defines “Off-Premise Sign” as “[a] sign which is used or intended
for use to advertise, identify, direct or attract the attention to a business, institution, product,
organization, event or location offered or existing elsewhere than upon the same property where
such sign is displayed.”
18. LUC § 12.0 provides the common procedures for development review in the
County.
19. LUC § 12.4.3.G provides that, as a general matter, when determining the outcome
of a development application at public hearing, the Board’s decision to approve, approve with
conditions, or deny the application must be in writing.
20. LUC § 12.4.3.H requires written notice of that decision to the applicant “within a
reasonable time after the decision.”
21. LUC § 12.0 does not provide a specified period of time after hearing by which the
Board’s decision is required to be reduced to writing. As such, if a written decision is required,
LUC § 12.0 operates as an unconstitutional prior restraint on free speech due to its failure to
include a brief, specified time period between application and final decision.
22. StreetMedia’s Appeal was not a development application governed by the
provisions of LUC § 12.0.
23. Rather, StreetMedia’s Appeal was an appeal regarding the enforcement of the
LUC, pursuant to LUC § 22.0, and particularly pursuant to LUC § 22.2.5—an appeal from the
applicable requirements of LUC § 10.0 (the Larimer County sign code).
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24. LUC § 22.2.2.5.c provides that, “[a]t the conclusion of the hearing [on an appeal,]
the county commissioners will affirm, affirm with modifications or reverse the decision of the
administrative officer or the interpretation of the planning director.”
25. There is no requirement under LUC § 22.0 for the decision of the Board to be
issued in writing.
26. Pursuant to LUC § 22.0, on June 1, 2020 the Board granted StreetMedia’s
Appeal. The grant of StreetMedia’s appeal relieved StreetMedia from the application of
unconstitutional restrictions on StreetMedia’s free speech.
27. Under LUC § 10.0, the content of signs is censored through a prohibition on “off-
premises” messages in LUC § 10.5.E. The prohibition treats “on-premise” commercial speech
more favorably than “off-premise” noncommercial speech.
28. For example, whether a liquor store qualifies for a permit to display a sign on its
property turns solely on the message to be displayed on that sign:
a. If the sign displays the name of the liquor store, and perhaps advertises a
specific product for sale there, the sign may qualify for a permit under
LUC § 10.0;
b. If, however, the sign displays an “off-premise” message (say, the name of
a business across the street, an announcement of a charity golf tournament
at a course somewhere else in the County, or an announcement of the
location of religious services somewhere else in the County), then it is
categorically prohibited under LUC § 10.5.
29. LUC § 10.5.E is “Content-Based” on its face because it applies to speech based
on the topic discussed or the idea or message expressed.
30. LUC § 10 also includes exceptions that favor some speakers over others. For
example, LUC § 10.6.F. provides that if a sign identifies “seed brands and varieties in use” or
“test plots,” it does not require a permit; and similarly LUC § 10.6.R., which provides that if a
sign provides certain “warning messages” it does not require a permit.
31. LUC § 10 allows certain subject matter to be displayed on signs without permits,
but if the signs exceed a certain size, then the Board of County Commissioners must first grant
an appeal before the owner of the sign is allowed to obtain a building permit and thereafter
display the message. For example:
a. LUC § 10.6.V. provides that “ideological signs” (defined as a “sign conveying a
philosophical, religious, political, charitable or other similar noncommercial
message”) cannot exceed 10 square feet in area per face within a maximum
aggregate of 20 square feet in face area per lot, and that such signs may not be
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lighted. As such, LUC § 10.6.V. prohibits the display of philosophical, religious,
political, charitable or other similar noncommercial messages on electronic signs.
b. LUC § 10.6.E. prohibits the display of commemorative messages on signs that are
larger than two square feet in area.
c. LUC § 10.6.U. prohibits the display of messages related to a candidate, issue,
proposition, or other matter to be voted upon by the electors of the county on
signs that are larger than 32 square feet.
32. Due to the array of content-based “permit exceptions” in LUC § 10.6 and the
prohibition of “off-premises” messages of all types in LUC 10.5.E, the entire regulatory program
set out in LUC § 10 is facially “Content-Based.”
33. Content-based regulations on speech are, in general, subject to strict scrutiny
review as set out in Reed v. Gilbert, 576 U.S. 155 (2015). The Board cannot demonstrate that
LUC § 10 is the least restrictive means to advance compelling governmental interests.
34. Even if LUC § 10 were construed to only burden commercial speech, LUC § 10
also fails the “commercial speech test” set out in Cent. Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n, 447 U.S. 557 (1980), and recently articulated by the Tenth Circuit in Aptive Envtl.,
LLC v. Town of Castle Rock, 959 F.3d 961 (10th Cir. 2020), because the Board cannot
demonstrate that harms associated with signs are real and, further, that LUC § 10 will in fact
alleviate those harms to a material degree.
35. LUC § 10 is also entirely arbitrary and divorced from context, and therefore does
not bear a substantial relation to the public health, safety, morals, or general welfare.
36. StreetMedia is a seller of advertising space on signs, as defined in LUC § 10.15.
37. As part of its business, StreetMedia purchases, leases, licenses, or seeks
easements on property, in order to install structures and signs upon which to display messages.
StreetMedia has several leases for the construction and display of signs in Larimer County. Not
all of the leased properties currently display signs.
38. StreetMedia’s sign inventory (“StreetMedia Signs”) includes both “static” signs,
which display messages that are printed on media that is affixed to the sign, and Changeable
Electronic Variable Message Signs (“CEVMS”), which allow for the rotation of messages on an
electronic display.
39. The Sign at issue in this case is CEVMS.
40. StreetMedia uses the Sign to display messages for for-profit businesses, non-
profit public service entities, political causes, civic causes, and StreetMedia itself.
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41. StreetMedia is generally compensated for the display of messages on StreetMedia
Signs.
42. StreetMedia also contributes to non-profit public service entities, political causes,
civic causes, and governmental entities by allowing them to display messages on StreetMedia
Signs without compensation to StreetMedia.
43. StreetMedia also works with other corporate and civic sponsors to display civic
messages (e.g., “Thank you Firefighters”).
44. The Certified Record includes testimony and evidence that StreetMedia’s lease
with the State Land Board will generate approximately $1,000,000 for public schools in
Colorado over the term of the lease; and that raising money for public schools using State-owned
land is the essential mission of the State Land Board.
45. LUC § 10 violates StreetMedia’s constitutionally protected right to free speech.
46. If applied to sign appeals under LUC § 22.2.2., LUC § 12.2.7.C.’s requirement for
a written decision on some unspecified date after the public hearing on the sign appeal is an
unconstitutional prior restraint on free speech.
FIRST CLAIM FOR RELIEF
(Declaratory Relief pursuant to 42 U.S.C. § 1983,
C.R.S. § 13-51-101, et seq., and C.R.C.P. 57)
47. StreetMedia incorporates its allegations set forth in paragraphs 1 through 45
above, as if fully set forth herein.
48. StreetMedia, as a business entity engaged in the construction of signs as well as
the sale and use of message space on signs, both to its customers and for its own uses, within the
County, is an interested party with standing to seek a declaration of its rights under the LUC.
49. Whether the LUC is unconstitutional, in whole or in part, on its face and/or as-
applied to StreetMedia is a matter of controversy appropriate for this Court to decide.
50. A declaration by this Court will terminate the controversy surrounding application
of the LUC, in whole or in part, to StreetMedia.
51. Accordingly, StreetMedia is entitled to, and seeks, a declaratory judgment stating:
a. The application of LUC § 12.2.7.C. to appeals from the restrictions set
forth in LUC § 10.0 relating to signs (pursuant to under LUC § 22.2.2) is a
prior restraint of speech that is prohibited under the First Amendment of
the U.S. Constitution and the Colorado Constitution, Article II, § 10,
because it restrains speech prior to judicial review, without providing a
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brief specified period of time during which the status quo must be
maintained, and as such: (i) the vote of the County Commissioners on
June 1, 2020 was a final decision approving StreetMedia’s Appeal, and a
written decision on the StreetMedia Appeal is without further legal effect;
and (ii) Plaintiff Fort Collins’ Complaint is untimely as a matter of law
and must be dismissed.
b. In addition or in the alternative, LUC § 10.0 in its entirety is
unconstitutional on its face and as applied to StreetMedia.
c. In addition or in the alternative, LUC § 10.5.E. is unconstitutional on its
face and as applied to StreetMedia.
SECOND CLAIM FOR RELIEF
(Injunctive Relief pursuant to 42 U.S.C. § 1983; C.R.C.P. 65)
52. StreetMedia incorporates its allegations set forth in paragraphs 1 through 51
above, as if fully set forth herein.
53. The application of LUC § 12.2.7.C.’s requirement for a written decision on some
unspecified date after the public hearing on a sign appeal under LUC § 22.2.2. is an
unconstitutional prior restraint on free speech.
54. The requirements of LUC § 10.0, including but not limited to LUC § 10.5.E., are
unconstitutional and pose and present a significant threat to StreetMedia’s constitutionally-
protected free speech and property rights in its existing signs, and in its free speech rights in
signs it may seek to construct or purchase in the future.
55. StreetMedia’s damages as a result of the enforcement of the unconstitutional
provisions of the LUC are immediate, irreparable, and incapable of redress through monetary
damages or other plain, speedy, and adequate remedy at law.
56. An injunction against enforcement of the unconstitutional provisions of the LUC
will not disserve the public interest, as it is in the public’s interest to have only constitutional
laws and codes enforced.
57. Accordingly, StreetMedia is entitled to preliminary and permanent injunctive
relief, enjoining the County from enforcing unconstitutional provisions of the LUC.
WHEREFORE, Defendant/Cross Claimant StreetMediaGroup, LLC respectfully requests
that this Court enter judgment on its Cross Claim in its favor and against the Board, and grant the
following relief against Defendant Board of County Commissioners of Larimer County,
Colorado:
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A. Find and declare that LUC § 12.2.7.C.’s requirement for a written decision on
some unspecified date after the public hearing on a sign appeal under LUC § 22.2.2. is an
unconstitutional prior restraint on free speech, and permanently enjoin the County from
enforcing LUC § 12.2.7.C. in the context of a sign appeal under LUC § 22.2.2, thereby allowing
for a final decision of the Board of County Commissioners by vote at the end of the public
hearing contemplated by LUC § 22.2.2.;
B. Find and declare that LUC § 10.0 is unconstitutional on its face and permanently
enjoin the County from enforcing LUC § 10.0;
C. Find and declare that LUC § 10.0 in unconstitutional as-applied to StreetMedia
and permanently enjoin the County from enforcing LUC § 10.0 against StreetMedia;
D. In addition to or in the alternative, find and declare that LUC § 10.5.E. is
unconstitutional on its face and permanently enjoin the County from enforcing LUC § 10.5.E.;
E. In addition to or in the alternative, find and declare that LUC § 10.5.E. is
unconstitutional as-applied to StreetMedia, and permanently enjoin the County from enforcing
LUC § 10.5.E. against StreetMedia;
F. Award StreetMedia attorneys’ fees and costs as may be available by law, and in
particular pursuant to 42 U.S.C. § 1988; and
G. Such other and further relief as the Court deems just and proper.
DATED this 12th day of December, 2020.
FAIRFIELD AND WOODS, P.C.
/s/ Andrew J. Helm
Todd G. Messenger, Reg. No. 38783
Andrew J. Helm, Reg. No. 47548
1801 California Street, Suite 2600
Denver, CO 80202
Telephone: (303) 830-2400
Facsimile: (303) 830-1033
E-Mail: tmessenger@fwlaw.com; ahelm@fwlaw.com
Attorneys for Defendant StreetMediaGroup, LLC
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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of December, 2020, I filed the foregoing with the
Clerk of the Court using Colorado Courts E-Filing. I further certify that a copy of the foregoing
was sent via Colorado Courts E-Filing to the following:
Andrew D. Ringel, Esq.
Hall & Evans, LLC
1001 Seventeenth St., Suite 300
Denver, CO 80202
John R. Duval
Claire Havelda
City Attorney’s Office
300 Laporte Ave.
P.O. Box 500
Fort Collins, CO 80522
Jeannine S. Haag
William G. Ressue
Frank N. Haug
Larimer County Attorney’s Office
224 Canyon Ave., Suite 200
P.O. Box 1606
Fort Collins, CO 80522
/s/ Andrew J. Helm
Andrew J. Helm