City of Lakewood v. Colfax Unlimited Ass'n, Inc.

• Citation: 634 P.2d 52
• Decision Date: 21 September 1981
• Docket Number: No. 28478,28478
• Parties: 12 Envtl. L. Rep. 20,431 CITY OF LAKEWOOD, Colorado, a municipal corporation, and James K. Spore, Zoning Administrator and Superintendent of Code Enforcement, Defendants-Appellants, v. COLFAX UNLIMITED ASSOCIATION, INC., a nonprofit corporation; Aubrey and Margaret K. Daedlow d/b/a Golden Hours Motel, a proprietorship; Gordon Neon Company, a corporation; Washburn Enterprises, Inc. d/b/a Trailerland, a corporation; Levitz Furniture Company of the Midwest, Inc., a corporation; Cornell Prescription Pharmacies, Inc., a corporation; on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellees.
• Court: Supreme Court of Colorado

Page 52

634 P.2d 52

12 Envtl. L. Rep. 20,431

CITY OF LAKEWOOD, Colorado, a municipal corporation, and James K. Spore, Zoning Administrator and Superintendent of Code Enforcement Defendants-Appellants, v. COLFAX UNLIMITED ASSOCIATION, INC., a nonprofit corporation Aubrey and Margaret K. Daedlow d/b/a Golden Hours Motel, a proprietorship; Gordon Neon Company, a corporation; Washburn Enterprises, Inc. d/b/a Trailerland, a corporation; Levitz Furniture Company of the Midwest, Inc., a corporation Cornell Prescription Pharmacies, Inc., a corporation; on behalf of themselves and all other persons similarly situated, Plaintiffs-Appellees.

No. 28478.

Supreme Court of Colorado, En Banc.

Sept. 21, 1981.

Brown, Maynard & Miller, Glen Maynard, David A. Solomon, Robert Warren, Golden, for defendants-appellants.

Pryor, Carney & Johnson, Thomas L. Roberts, John E. Walberg, Englewood, for plaintiffs-appellees.

DUBOFSKY, Justice.

The defendant City of Lakewood appeals from an order of the Jefferson County District Court declaring that section 3-3 of the City's Zoning Ordinance (the Sign Code or Code) is unconstitutional. Because we conclude that many of the Code's provisions violate the First and Fourteenth Amendments to the United States Constitution and cannot be severed from the remainder of the Code, we affirm the judgment below.

The plaintiff-appellees are owners and users of commercial on-premises advertising signs in Lakewood. ¹ The named plaintiffs, Colfax Unlimited Association, Inc.; Washburn Enterprises, Inc., d/b/a Trailerland; A. M. Baedlow, d/b/a Golden Hours Motel; Cornell Prescription Pharmacies, Inc.; Gordon Neon Company; and Levitz Furniture Company of the Midwest, Inc., certain of whose signs do not comply with section 3-3, brought this action on behalf of themselves and a similarly situated class of approximately 500 parties, seeking declaratory relief and an injunction prohibiting Lakewood from enforcing the Code. The class was certified by the district court in accordance with C.R.C.P. 23(b)(2), and Lakewood agreed, by stipulation, to suspend enforcement of the Code until the conclusion of this litigation.

Following a trial to court, the district court entered an order declaring the Code unconstitutional and permanently enjoining its enforcement. Among its many conclusions of law, the court ruled that the plaintiffs possessed standing to challenge the Code as facially overbroad; that the Code was unconstitutionally overbroad and invalid on its face; that the Code was void for vagueness; that the Code constituted an impermissible delegation of legislative power to the executive branch; that Lakewood, a statutory municipality, lacked the power to regulate the number and type of signs which could be displayed on lots within its different zoning districts; that the Code unconstitutionally discriminated among different users of the same medium of communication in violation of U.S.Const. amends. I and XIV; and that, notwithstanding the Code's severability clause, its deficiencies were so pervasive that it could not be salvaged as a meaningful legislative enactment. ² Although we disagree with several of the conclusions reached by the district court, we too conclude that the Code is flawed by basic constitutional infirmities and cannot be salvaged by a narrowing construction or severance of the unconstitutional provisions. ³

I.

Before considering the merits of the plaintiffs' multifaceted attack on the Sign Code, we must inquire whether the named and unnamed members of the plaintiff class possess standing to challenge both the provisions of the Code they characterize as unconstitutionally overbroad and those challenged on other constitutional and non-constitutional grounds. See, e. g., Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977). ⁴

A.

We recently summarized the principles governing First Amendment overbreadth litigation in Marco Lounge, Inc. v. City of Federal Heights, Colo. 625 P.2d 982 (1981). In that case, we recognized that the rules of standing are broadened in First Amendment cases to allow parties to whom the laws or regulations could constitutionally be applied "to assert the facial unconstitutionality of laws or regulations which may create a chilling effect on the freedom of expression of persons not before the court." Id. Colo., 625 P.2d at 985.

The reason for the expansive standing rule in such cases is that

" '(t)he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.' "

Id., quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830, 840 (1973).

However, we also warned in Marco Lounge that "(t)he doctrine of overbreadth must be applied with caution, in recognition of the interest of the state in controlling harmful, constitutionally unprotected conduct." Id. We then drew upon the reasoning of Broadrick v. Oklahoma, supra, concluding that:

" '(F)acial overbreadth adjudication is an exception to our traditional rules of practice and ... its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct even if expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect at best a prediction cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. (Citation omitted.) To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.' "

Marco Lounge, Inc. v. City of Federal Heights, supra, 625 P.2d at 985-986 (emphasis added). Accord May v. People, Colo., --- P.2d ---- (1981) (S.Ct. No. 80SC77, announced September 21, 1981). Therefore, to determine whether the plaintiffs have standing to assert First Amendment third-party rights in this case, we must ascertain whether the overbreadth of challenged Code provisions is not only real, but substantial. See Parrack v. Town of Estes Park, Colo., 628 P.2d 1014 (1981); Williams v. City and County of Denver, Colo., 622 P.2d 542 (1981).

B.

It is well-settled that signs, like many other communication media, possess both communicative and noncommunicative characteristics. Although the government has a legitimate interest in controlling the noncommunicative aspects of signage, its power to regulate the medium's communicative features is narrowly circumscribed by the First and Fourteenth Amendments. Metromedia, Inc. v. City of San Diego, --- U.S. ----, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981). Accord Williams v. City and County of Denver, supra. See also Veterans of Foreign Wars v. City of Steamboat Springs, 195 Colo. 44, 575 P.2d 835 (1978). It is equally well-settled that commercial as well as ideological ⁵ speech is protected by the First Amendment. See, e. g., Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980); Virginia State Board of Pharmacy v. Virginia Citizens' Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); May v. People, supra. Based on these premises, we consider, section-by-section, the challenged Code provisions.

C.

The plaintiffs first contend, and the trial court held, that the Code's definition of "sign," section 3-3(B)(23) ⁶ (the definitional section) is overbroad because it is "virtually limitless." While we do not disagree with the characterization of the definition as "limitless," that characteristic alone is not sufficient to demonstrate that the overbreadth is either real or substantial. An ordinance or statute is overbroad only if it impermissibly proscribes or regulates constitutionally protected expression. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). The definition of "sign" considered alone neither proscribes nor regulates expression it simply defines the class of "objects and devices" regulated under the Code's substantive provisions.

It makes little sense to ask whether the definitional section is overbroad; the question must be framed by asking whether the definitional section is an overbroad regulation of protected expression in the context of the particular substantive regulatory provisions which may be enforced against "objects or devices" defined as "signs." For that purpose, the first consideration is whether the definitional section is overbroad as incorporated in section 3-3(F) which regulates the type, number, location, height and other physical characteristics of signs in different zoning districts in Lakewood and the second is whether the definition is overbroad as incorporated in section 3-3(G) (2) which provides that

"No person, firm, or corporation shall erect, construct, enlarge, alter, move or convert any sign in the City, or cause the same to be done, without first obtaining a separate building permit for each such sign, pursuant to the Building Code of the City of Lakewood...."

To the extent that these and other substantive regulatory provisions of the Code purport to regulate only the time, place, and manner of expression and to require a permit before a sign is constructed, altered or moved, the alleged overbreadth of the definitional section can only be premised on the following, hypothetical constitutional infirmities: (...